Cutshall v. State

• Citation: 191 Miss. 764,4 So.2d 289
• Decision Date: 13 October 1941
• Docket Number: 34456.
• Court: United States State Supreme Court of Mississippi
• Parties: CUTSHALL v. STATE.

4 So.2d 289

191 Miss. 764

CUTSHALL v. STATE.

No. 34456.

Supreme Court of Mississippi

October 13, 1941

Clark & Clark, of Iuka, for appellant.

Greek L. Rice, Atty. Gen., and R. O. Arrington, Asst. Atty. Gen for appellee.

ALEXANDER Justice.

Appellant was convicted upon a charge of manslaughter predicated of alleged culpable negligence in the operation of an automobile truck upon the highway. The deceased was assisting in the operation of a motor truck equipped with a water tank and sprinkling device, his special duty being to remain afoot closely behind the device to warn and direct motorists approaching from the rear. The highway was rough and certain signs and signals had been placed at various points indicating its condition. The testimony justifies a finding that appellant was traveling in the same direction as the sprinkler truck, and at a rate of from 55 to 60 miles per hour; that appellant was under the influence of intoxicating liquor; and that appellant negligently ran into and killed deceased. Various issues arose as to the facts and the assignment of errors includes admission of testimony sufficiency of the evidence, and allowance of instructions. Without rehearsing the testimony in greater detail, we content ourselves with the concession that the evidence regardless of our views thereon, was sufficient to present an issue of culpable negligence.

The only assignment of error in which we find any merit involves the giving of instruction number 3 for the state. It is as follows:

"The Court charges the jury for the State that it is a violation of the criminal laws of the State of Mississippi for a person to operate a motor vehicle on a public highway while under the influence of intoxicating liquor; and if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Floyd Cutshall, unlawfully operated the pickup truck on public highway number 72 at a time when he was under the influence of intoxicating liquor, and in a manner constituting culpable negligence as defined in State instruction number 2, and that as a proximate result thereof Spangler Gregson was killed, then it is your sworn duty to find the defendant guilty as charged."

The indictment was in the statutory form of manslaughter charging that the defendant "* * * did unlawfully and feloniously kill and slay one Spangler Gregson, a human being * * *". This was sufficient. Code 1930, § 1211. Bradford v. State, 158 Miss. 210, 127 So. 277. The prosecution was conducted under Code 1930, § 1002, which is as follows:

"Every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this chapter, shall be manslaughter." Culpable negligence was at once the basis of the prosecution and the gauge as to the evidence. State v. Ruffin, 344 Mo. 301, 126 S.W.2d 218, 221. The instructions were likewise drawn in conformity with this theory. Culpable negligence as contemplated by the statute was defined in the second instruction given to the State as "that degree of negligence which is denominated as gross, and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference to consequences * * *". The definition imports conduct reasonably calculated to injure others and creating notable and apparent potentialities for the causing of death or great injury to others. See Bell v. Commonwealth, 170 Va. 597, 195 S.E. 675; State v. Gutheil, 98 Utah 205, 98 P.2d 943.

The driving of a vehicle by one who is under the influence of intoxicating liquor is a misdemeanor. § 49, ch. 200, Laws 1938. The driving of an automobile while in this condition is therefore per se negligence. Williams v. State, 161 Miss. 406, 137 So. 106. But this does not mean that such evidence constitutes a prima facie case of manslaughter. See Wilson v. State, 173 Miss. 372, 161 So. 744; Wells v. State, 162 Miss. 617, 139 So. 859; State v. Thomlinson, 209 Iowa 555, 228 N.W. 80; State v. Clark, 196 Iowa 1134, 196 N.W. 82; People v. Wardell, 291 Mich. 276, 289 N.W. 328.

For us to so hold would be judicial legislation. If it be a desirable expedient it should commend itself to the judgment of the legislative department. Although a jury may find that the conduct of the operator constitutes gross negligence, the violation of the statute is not culpable negligence per se within the definition of Section 1002. State v. Campbell, 82 Conn. 671, 74 A. 927, 135 Am.St.Rep. 293, 18 Ann.Cas. 236; People v. Falkovith, 280 Ill. 321, 117 N.E. 398, Ann.Cas.1918B, 1077; State v. Clark, 196 Iowa 1134, 196 N.W. 82; Crisp v. State, 21 Ala.App. 449, 109 So. 282.

It must be kept in mind that appellant is here prosecuted not for driving while under the influence of intoxicating liquor but for culpable negligence. These are separate offenses for which one could be separately prosecuted and neither prosecution would bar the other. See State v. Sisneros, 42 N.M. 500, 82 P.2d 274; People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902; 8 R.C.L. 147; Holland v. State, 123 Fla. 142, 166 So. 468. In a prosecution for manslaughter referable to culpable negligence, intoxication could be a relevant evidential factor. Yet it is not as controlling that the defendant in manslaughter was violating the traffic laws as that he was in fact culpably negligent. One may be negligent while acting lawfully. State v. Biewen, 169 Iowa 256, 151 N.W. 102; Commonwealth v. Amatucci, 29 Del.Co.R., Pa., 160. One may violate the law and yet not be culpably negligent in fact. Commonwealth v. Aurick, 138 Pa. Super. 180, 10 A.2d 22; People v. Warner, 27 Cal.App.2d 190, 80 P.2d 737; Commonwealth v. Williams, 133 Pa.Super. 104, 1 A.2d 812. It is sufficient in a prosecution for the misdemeanor that the defendant be driving while under the influence of liquor. No injury need be shown. For it to be a factor in a case involving culpable negligence it must create an abnormal mental and physical condition which tends to deprive one of the clearness of intellect and control of himself which he would otherwise possess. Commonwealth v. Buoy, 128 Pa.Super. 264, 193 A. 144; Steffani v. State, 45 Ariz. 210, 42 P.2d 615. In order for the influence of intoxicating liquors to be a factor in showing criminally culpable negligence it must contribute proximately both to the establishment of such negligence and to the resultant death. Scott v. State, 183 Miss. 788, 789, 185 So. 195; People v. Goodale, 33 Cal.App.2d 80, 91 P.2d 163; Hiller v. State, 164 Tenn. 388, 50 S.W.2d 225; Cockrell v. State, 135 Tex.Cr.R. 218, 117 S.W.2d 1105.

While the operation of automobiles by those under the influence of intoxicating liquor constitutes a growing menace and is deserving of universal censure and legislative condemnation, yet in a prosecution for manslaughter based upon the culpable negligence of a driver it is the fact that the driver is under the influence of liquor which is important and not the incident that it constitutes a misdemeanor. It is not the fact but the effect of the intoxication which is relevant. That such conduct is negligence is material; that it is a criminal offense is not. If it were true that driving while under the influence of intoxicating liquor was per se culpable and criminal negligence the case would be different. But such is not the law in this state. We are not here dealing with a civil case where the fact of violation of a traffic law would create a prima facie case of simple negligence. Culpable negligence connotes a distinct quality of recklessness from simple or gross negligence in civil cases. Wells v. State, 162 Miss. 617, 139 So. 859; Scott v. State, 183 Miss. 788, 185 So. 195; State v. Ruffin, 344 Mo. 301, 126 S.W.2d 218; 29 C.J. 1154.

The jury were warranted in taking into account any mental and physical condition which they found due to the influence of intoxicating liquor. But it was only an incident or an attendant condition that he was subject to prosecution for this misdemeanor. Conceding but not deciding that ...