Burton v. State

• Decision Date: 04 April 1955
• Docket Number: No. 39414,39414
• Parties: Robert BURTON v. STATE.
• Court: Mississippi Supreme Court

Page 242

79 So.2d 242

226 Miss. 31

Robert BURTON v. STATE.

No. 39414.

Supreme Court of Mississippi.

April 4, 1955.

T. J. White, Gulfport, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

KYLE, Justice.

The appellant, Robert Burton, was tried and convicted at the March 1954 term of the Circuit Court of Simpson County on a charge of unlawfully, wilfully and feloniously killing and slaying Annie Mangum, and was sentenced to imprisonment in the state penitentiary for a term of 20 years. From that judgment he prosecutes this appeal.

The indictment upon which the appellant was tried was one of three indictments returned against the appellant at the March 1945 term of the court as a result of the alleged unlawful killing of Mrs. Annie Mangum, Leonard P. Hall and Howard Walker by the culpable negligence of the appellant in the operation of an automobile. The accident in which the three persons named lost their lives occurred on October 21, 1944, on U. S. Highway No. 49, about 2 1/2 miles south of the Town of Magee, when an automobile which was being driven by the appellant swerved from its proper course along the north bound traffic lane of the highway and struck the three persons named while they were standing on the east shoulder of the highway near a truck parked in front of Henry Mangum's residence. Leonard Hall was killed instantly. Mrs. Annie Mangum and Howard Walker were fatally injured and died about one hour later after they reached the hospital at Magee. The driver of the death car did not stop to make known his identity or to render assistance to the injured.

The appellant was tried at the March 1945 term of the court on the indictment charging him with the killing of Leonard Hall, and was convicted and sentenced to imprisonment in the state penitentiary for a term of years. No action was taken on either of the other indictments until January 4, 1954, when an alias capias was issued to the Sheriff of Simpson County for the appellant's arrest on the indictment which charged him with the killing of Mrs. Annie Mangum. The appellant was arraigned at the March 1954 term of the court on that indictment, and entered a plea of not guilty. The appellant at the same time filed a written plea of former jeopardy.

In his plea of former jeopardy the appellant alleged that he had been put to trial on March 19, 1945, on the indictment which charged him with the unlawful killing of Leonard Hall, and that he had been convicted and sentenced to the state penitentiary for a term of years for that offense; that the conviction in that case was based upon the appellant's alleged culpable negligence in the operation of his automobile which resulted in the killing of the said Leonard Hall; and that, with the exception of the name of the person killed, the crime charged in the indictment for the killing of Mrs. Annie Mangum was one and the same crime as that charged against him in the indictment for the killing of the said Leonard Hall. The appellant also alleged in his plea that, while there were three persons who had lost their lives as a result of the appellant's alleged culpable negligence, there was only one instrumentality used and only one accident, and that the appellant had already been tried and convicted for the alleged crime of manslaughter growing out of said alleged culpable negligence, and that to try him for the killing of the said Mrs. Annie Mangum would constitute a second jeopardy and would violate his constitutional right not to be tried twice for the same offense.

The appellant introduced evidence in support of his plea of former jeopardy and testified for himself in support of said plea.

The court overruled the plea of former jeopardy, a jury was empaneled and the court proceeded with the trial.

The testimony of the State's witnesses showed that Leonard Hall and his wife, Mrs. Hattie Hall, and his son, Leonard Hall Jr., Henry Mangum and his wife, Mrs. Annie Mangum, Arthur Mangum and his wife, Mrs. Ola Mangum, and Howard Walker had made a business trip to the City of Jackson on October 21, 1944, in Leonard Hall's Chevrolet truck, and that the parties were returning to their homes a few miles south of Magee at the time the accident occurred. When they reached a point on the highway opposite Henry Mangum's house, about nightfall, the driver of the truck pulled over on the shoulder of the highway and stopped to permit Henry Mangum and his wife to get off the truck, and to permit Henry Mangum to unload two sacks of feed and other merchandise that he had purchased during the day. Henry Mangum and his wife got off the truck, and Leonard Hall and his wife and son also got off the truck.

While Henry Mangum was engaged in unloading from the truck the sacks of feed and other articles of merchandise that he had purchased during the day, an automobile was seen approaching from the south. The car was first seen as it passed over the crest of a hill about 300 yards south of the entrance to Henry Mangum's driveway. The car continued its course down the highway at a rapid rate of speed until it reached a point only a short distance from the place where the truck was parked, and then angled off from the east traffic lane of the highway on to the edge of the shoulder and struck with terrific force Mrs. Annie Mangum, Leonard Hall and Mrs. Hattie Hall, who were standing on the shoulder of the highway near the door of the truck. The car then side-swiped the truck and hit Howard Walker, who was at the rear end of the truck. Leonard Hall was killed instantly. Mrs. Annie Mangum and Mrs. Hattie Hall were knocked under the body of the truck, and Mrs. Mangum died about an hour later as a result of her injuries. Howard Walker was caught up on the front end of the car and was carried about 100 yards down the highway before he fell off or was thrown off.

Arthur Mangum, who was standing astraddle the truck body when the car passed, testified that the car was traveling at a rate of speed of 60 or 65 miles per hour, that two wheels of the car left the pavement about 20 feet before it got to the truck, and that the car was 30 or 40 feet behind the truck before it got back on the pavement. After Mangum saw that the driver of the car did not intend to stop, he took from his packet a pistol and fired two shots at the car before it got out of sight. Mangum stated that the driver of the car was a Negro, and that there were several other persons in the car with him, but he was unable to identify any of them. Mangum stated that the highway was straight for a distance of approximately 600 yards as it passed Henry Mangum's home, and that the driver of the automobile had a clear view of the highway from the top of the hill 300 yards south of the entrance to Henry Mangum's premises to a point far north of the place where the wreck occurred.

Luther Boone, Leonard Hall's son-in-law, who lived on the west side of the highway only a short distance from Henry Mangum's residence, testified that he had boarded the truck at Magee, and when the truck came to a stop he got off the truck and walked around in front of the truck and was about to cross the highway to go to his home when he saw the automobile approaching. Boone stated that the car was about 300 yards up the highway at that time and appeared to be running about as fast as it could run. Boone stopped on the shoulder of the highway in front of the truck and waited for the car to pass, and Boone saw the car angle off toward the truck and hit the people who were standing on the shoulder of the highway only a few feet from him. Boone stated that there was no vehicle approaching from the north at the time of the accident, and there was nothing in the highway to cause the driver of the automobile to leave the highway and strike the people standing near the truck. Boone did not know whether the driver of the car was white or colored, and he did not know how many people were in the car.

Leonard Hall Jr. testified that he was on the left-hand side of the truck and was getting in the truck to drive to his father's home when the accident occurred. He stated that the truck was parked about 2 1/2 feet from the pavement and was leaning away from the pavement, because there was a ditch on the other side; that the automobile did not touch the front end of the truck when it passed, but that it did scrape and damage one of the dual wheel tires on the rear end of the truck. Hall also testified that there was no other car in sight at the time of the accident.

Henry Mangum testified that he was standing on the left side of the truck and was unloading his sacks of feed and other supplies at the time of the accident. The truck had been pulled over about 2 1/2 feet from the black top surface of the highway, and the left wheels were standing in a ditch. Mangum stated that he saw he automobile approaching from the south and noticed that it was wobbling as it came down the highway, but when it was about 50 yards up the road it looked like it was going straight. Mangum reached for a sack of flour on the truck, and as the car passed he heard screams. After the car had passed he found his wife and his sister, Mrs. Hall, lying partly under the truck against the back wheels. A part of Leonard Hall's body was lying in the highway and a part under the truck. Howard Walker was found lying in a clump of weeds and grass off the highway about 122 steps north of the truck.

The testimony showed that the injured persons (not including Leonard Hall, who had been killed instantly), were carried to the hospital at Magee a few minutes after the accident. Mrs. Annie Mangum had a hole knocked in her right hip. Her left eye was knocked out, and her cheek bone was broken. Her legs were broken just above the knees. She died in the operating room a few minutes after arriving at the hospital. Howard Walker's legs were broken in several places and his body crushed. He also died soon...