Bradford v. State

• Decision Date: 24 March 1930
• Docket Number: 28477
• Court: Mississippi Supreme Court
• Parties: BRADFORD v. STATE

127 So. 277

158 Miss. 210

BRADFORD v. STATE

No. 28477

Supreme Court of Mississippi

March 24, 1930

Division A

1 AUTOMOBILES. Indictment for manslaughter setting up alleged negligence in operation of automobile was sufficient against demurrer (Hemingway's Code 1927, sections 1023, 1248).

Indictment for manslaughter based on Code 1906, section 1244 (Hemingway's Code 1927, section 1023) providing that every killing of human being by act, procurement, or culpable negligence of another, and without authority of law, not provided for in chapter, shall be manslaughter, setting out with detail the negligent, operation of automobile alleged to have caused death, in addition to allegations in language of Code 1906, section 1431 (Hemingway's Code 1927, section 1248), was sufficient as against demurrer.

2. INDICTMENT AND INFORMATION. Acts constituting alleged culpable negligence are not surplusage, but must show negligence constituting alleged crime.

Where acts constituting alleged culpable negligence are set forth in indictment, such charges are not merely surplusage, but matters of substance, which must show such negligence as will constitute crime intended to be thereby charged.

3 AUTOMOBILES. Culpable negligence of defendant charged with manslaughter, based on alleged negligent operation of automobile, held for jury (Hemingway's Code 1927, section 1023).

In prosecution for manslaughter under Code 1906, section 1244 (Hemingway's Code 1927, section 1023), based on alleged negligence in operation of automobile, the question of whether or not defendant was guilty of culpable negligence held for jury.

4 AUTOMOBILES. Instruction on rate of speed on highway where territory contiguous thereto was closely built up held erroneous under evidence (Hemingway's Code 1927, section 1023; Motor Vehicle Law).

In prosecution for manslaughter under Code 1906, section 1244 (Hemingway's Code 1927, section 1023), based on alleged negligence in operation of automobile, instruction relative to speed at which motor vehicle might be operated on highway where territory contiguous thereto was closely built up held erroneous, in view of testimony not warranting a finding that territory contiguous to highway at place of accident was closely built up within meaning of Motor Vehicle Law (Laws 1928, chapter 201).

HON. T. E. PEGRAM, Judge.

APPEAL from circuit court of Calhoun county HON. T. E. PEGRAM, Judge.

Marvin Bradford was convicted of manslaughter, and he appeals. Reversed and remanded.

Judgment reversed and cause remanded.

W. I. Stone, of Coffeeville, McKeigney & Latham, of Eupora, and W. J. Evans, of Calhoun City, for appellant.

Where the state elects to give the details of the overt act it must charge the acts constituting the offense directly and clearly and precisely and not argumentatively, inferentially, or by the process of exclusion.

Encyc. of Pl. & Pr., vol. 4, p. 722; Harkness Case, 48 So. 294; Miller v. State, 130 Miss. 736; Stapleton v. State, 130 Miss. 737, 95 So. 86; Tyler v. State, 69 Miss. 395, 11 So. 25.

When a man in the execution of one act, by misfortune or chance, and not designedly, does another act for which if he had willfully committed it he would be liable to be punished, in that case if the act he was doing was lawful or merely malum prohibitum he shall not be punished for the act arising from misfortune or a chance; but if malum in se it is otherwise.

Archibald's New Criminal Procedure 9; Dixon v. State, 104 Miss. 410; State v. Horton, 139 N.C. 588, 51 S.E. 945, 1 L. R. A. (N. S.) 991; 111 Am. St. Rep. 818, 4 Ann. Cases 797; Copeland v. State, 49 A. L. R. 605; Johnson v. State, 90 A. S. R. 578, 582; Commonwealth v. Adams, 19 Am. Rep. 362; 15 Am. Rep. 972; Peeples v. Adams, 124 N.E. 575, 289 N.E. 339; Ohio v. Collingsworth, 28 L. R. A. (N. S.) 770; Peeples v. Pearne, 118 Cal. 154, 50 P. 376.

Forrest B. Jackson, Assistant Attorney-General, for the state.

Mere surplusage in an indictment does not vitiate the indictment, if there is sufficient language to apprise the defendant of the charge lodged against him. The first part of the indictment in this case sufficiently charges the crime of manslaughter under the culpable negligence statute. The other matters plead are mere surplusage and statements of the pleader, which while not necessary, do no harm to the pleading.

Bishop's New Criminal Procedure, vol. 1, sec. 479; Holmes v. State, 118 So. 431; Gregory v. State, 118 So. 907; Lewis v. State, 121 So. 493.

The question as to the sufficiency of the evidence is for the jury.

Sims v. State, 149 Miss. 171, 115 So. 217; 29 C. J. 1154, section 141 (4).

Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing of something which such a man would not do under the circumstances surrounding the particular case.

1 Words & Phrases (2 Series), p. 1174; Holmes v. State, 118 So. 431; Alfred v. State, 37 Miss. 296.

The mere introduction of certain evidence (especially not objected to by the defendant) does not of itself make admissible testimony of the defendant as to occurrences at the same time.

Alfred v. State, 37 Miss. 296; Richardson v. State, 85 So. 186, 123 Miss. 232.

Where there was testimony, that there were a number of houses situated within several hundred yards of the point at which the wreck occurred, it was then a question for the jury as to whether or not this particular territory was closely built up.

Section 6682, Hemingway's Code 1927; Sims v. State, 149 Miss. 171, 115 So. 217.

Argued orally by W. I. Stone, for appellant, and by Forrest B. Jackson, Assistant Attorney-General, for the state.

OPINION

Cook, J.

The appellant, Marvin Bradford, was convicted in the circuit court of Calhoun county on a charge of manslaughter, and sentenced to serve a term of three years in the state penitentiary; and from this conviction and sentence he prosecuted this appeal.

The facts shown by the evidence are as follows: In the late afternoon of the 28th day of May, 1928, Mrs. Perry Peden was driving a Ford automobile from Calhoun City to her home, which was situated on the west side of a highway running north from Calhoun City to Pittsboro, in Calhoun county. She was traveling on the right-hand or east side of the highway going north until she reached a point where it was necessary for her to turn west across the highway, in order to enter a driveway leading out to her home. At that point she turned west across the highway toward this driveway, and, when she did so, her automobile was struck by a Chrysler roadster driven by the appellant, which was on the west side of the highway, and was traveling south toward Calhoun City. As a result of this collision Mrs. Peden's automobile was knocked about eighty feet south from the point where it was struck, and Mrs. Peden was killed. The Chrysler roadster was thrown completely over the Ford, and landed with its wheels in the air, and its radiator pointed in a northerly direction. The appellant and his two companions escaped without serious injury.

Mrs Howard Murff, a witness for the state, who lived about two hundred yards south from the Peden home, testified that Mrs. Peden stopped at her residence to discharge a passenger, and then proceeded north toward her home at a rate of speed of about ten miles per hour, and that just before she turned west across the highway she gave a signal by extending her arm. The rate at which the appellant's automobile was traveling at the time of the collision was variously estimated by the state's witnesses at from fifty to seventy miles per hour, and there was testimony to the effect that his automobile was swerving back and forth across the highway. The appellant and his witnesses testified that the rate of speed was between thirty and forty miles per hour, and that the occupants of the car had no notice of the fact that Mrs. Peden intended to turn across the highway until she suddenly turned her automobile, and projected it into the path of the Chrysler, which was traveling on the right-hand side of the road going south, that when she turned her automobile across the highway the appellant's automobile was only about sixty feet away, and that, while he applied the brakes as quickly as possible, it was...