Campbell v. State, 47514

• Decision Date: 26 November 1973
• Docket Number: No. 47514,47514
• Parties: Willie M. CAMPBELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 891

285 So.2d 891

Willie M. CAMPBELL v. STATE of Mississippi.

No. 47514.

Supreme Court of Mississippi.

Nov. 26, 1973.

Rehearing Denied Dec. 17, 1973.

Darryl A. Hurt, Lucedale, for appellant.

A. F. Summer, Atty. Gen., by Karen Gilfoy, Sp. Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Presiding Justice.

The appellant, Willie Campbell, was indicted by the Grand Jury of George County, Mississippi, on a charge of manslaughter. He was tried, convicted and sentenced to serve a term of twelve (12) years in the Mississippi State Penitentiary. He contends on appeal to this Court that the trial court erred in failing to direct a verdict, or to enter a judgment in his favor, or to grant appellant a new trial.

The record shows that about 6:00 P.M. on August 10, Charles Hill, Roy Farrell, and T. Jefferson met Willie Campbell, the appellant, as they were en route to get beer. The appellant parked his automobile and got into the automobile with the young men. After they had obtained the beer, they went to the home of the Jimmy Lee Williams, but stayed there only a short time. They then returned to the appellant's parked automobile and after having stopped once, Hill drove to the intersection of Highway 98 and Narrow Gap Road. Hill stopped at the intersection. The appellant drove his car up to this point, and asked Hill if he wanted to run his car. Appellant told Hill that when Hill reached a certain point on a hill on the highway 'once he could get all he could get' to blink his lights and he would pass him. Hill proceeded to the point agreed upon on the top of the hill, and began to speed up to one hundred and seventeen (117) or one hundred eighteen (118) miles per hour. Hill blinked his lights and appellant, Willie Campbell, attempted to pass. As the two automobiles were speeding side by side down the highway, they approached a large truck going in the same direction on the right-hand lane. At the same time an automobile was approaching from the opposite direction in the lane occupied by the automobile driven by Campbell. The gap between the Hill automobile and the truck was rapidly narrowing. In order to let the appellant get into the right-hand land, Hill put on his brakes and skidded into the left-hand lane of traffic in front of the oncoming automobile. This movement resulted in a head-on collision with an automobile driven by Winston McMahon. The two automobiles travelled to the side of the road. Hill's automobile ran and tumbled three hundred thirty (330) feet south of the point of impact. The McMahon automobile travelled ninety-six (96) feet. The automobiles were demolished. Charles Hill and Ray Farrell were killed in the Hill automobile, and Winston McMahon was killed in the automobile he was driving. The highway patrolman who investigated the accident found many beer cans and marijuana cigarettes at the place where the Hill automobile came to rest. T. Jefferson and Willie Perine, the two surviving witnesses in Hill's automobile, testified to the foregoing facts. The defendant offered one witness to show an alibi. The defendant did not testify.

The appellant's automobile did not contact or touch the other automobiles involved in the accident, nor did he stop at the scene of the accident.

The principal argument on appeal by appellant is that the State of Mississippi failed to prove beyond a reasonable doubt that the defendant was guilty of such gross negligence as to evince a wanton or reckless disregard for the safety of human life, or such an indifference as to the consequence of his acts as to render his conduct tantamount of willfulness which amounted to culpable negligence.

The appellant was indicted under Section 2232, Mississippi Code 1942 Annotated (1956) (Mississippi Code 1972 Annotated § 97-3-47). This section is in the following language:

'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.'

It has been pointed out by this Court on several occasions that involuntary manslaughter by culpable negligence within the meaning of the foregoing Code section may be defined as the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as the result of the willful creation of an unreasonable risk. See Smith v. State, 197 Miss. 802, 20 So.2d 701, 161 A.L.R. 1 (1945), and cases cited in Downs v. State, 206 Miss. 831, 41 So.2d 19 (1949).

It is true that the appellant's automobile did not strike the automobile driven by the deceased, and the negligence of Hill in applying his brakes in such a manner as to cause his automobile to skid into the oncoming automobile driven by Winston McMahon was the immediate cause of the death of McMahon. On the other hand, the record shows that the defendant aided and abetted Hill in the doing of an act obviously dangerous to persons using the highway in reckless and utter disregard for human life.

Section 1995, Mississippi Code 1942 Annotated (1956) (Mississippi Code 1972 Annotated § 97-1-3) is in the following language:

'Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such; and this whether the principal have been previously convicted or not.'

In the early English cases as well as the early American, automobiles hold that there could be no accessory to an involuntary manslaughter. (See cases collected Annot. 44 A.L.R. 576-578 (1926)). However, later cases hold that:

'Manslaughter may result from the doing of an unlawful act or as the result of gross negligence in the performance of an act otherwise lawful, consequently, one who procures another to use a dangerous agency which causes death may be guilty as accessory before the fact.' 26 Am.Jur. Homicide § 59, at 199 (1940).

See authorities collected in 26 Am.Jur. Homicide § 59, at 199 (1940).

We do not think it necessary to decide this issue at this time, because it is clearly the law that when persons enter into an automobile race upon a public highway where human beings are likely to be using the highway and one of the participants kills or injures another person using the highway, automobile operators are liable criminally as well as civilly. People v. Kemp, 150 Cal.App.2d 654, 310 P.2d 680 (1957).

One text writer states the rule in the following language:

'The driver of a motor vehicle who enters into an unlawful race with the driver of another motor vehicle may be held criminally responsible for the death of a third person caused by the speed and reckless driving of the latter driver, even though the former's vehicle has no physical contact at any time with the victim of the killing, where the acts of both drivers lead directly to and are a proximate cause of the killing.' 7 Am.Jur.2d ...