Coleman v. State

• Decision Date: 13 March 1950
• Docket Number: No. 37423,37423
• Parties: COLEMAN v. STATE.
• Court: Mississippi Supreme Court

Page 240

45 So.2d 240

208 Miss. 612

COLEMAN v. STATE.

No. 37423.

Supreme Court of Mississippi, in Banc.

March 13, 1950.

Drake & Gage, Port Gibson, John H. Culkin, Port Gibson, for appellant.

Geo. H. Ethridge, Acting Atty. Gen., R. O. Arrington, Asst. Atty. Gen., for appellee.

ROBERDS, Justice.

The indictment herein charged appellant with manslaughter in the killing of T. N. Tillson, Jr., through culpable negligence. Section 2232, Mississippi Code of 1942. He was convicted and sentenced to serve two years in the state penitentiary. Death resulted from an automobile accident.

Appellant contends (1) the evidence is insufficient to sustain his conviction under the rule heretofore announced by this court, but, if so, the lower court erred in (2) granting to the state, and (3) in refusing to grant to appellant, the hereinafter designated instructions. We will dispose of the contentions in the order stated.

In Smith v. State, 197 Miss. 802, 20 So.2d 701, 704, 161 A.L.R. 1, this court stated the rule by which guilt in such cases is to be tested. It there said '* * * the gist of the offense of involuntary manslaughter with a motor vehicle is criminal negligence, which must be wanton or reckless under circumstances implying danger to human life. * * * It must be negligence so wanton or reckless as to be incompatible with a proper regard for human life. * * * It must be shown that a homicide was not improbable under all the facts existing at the time, in order to sustain a conviction of criminal homicide attributable to negligence. * * * In other words, culpable negligence should be defined as the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as a result of the wilful creation of an unreasonable risk thereof.' And finally, 'In order then to give the term culpable negligence in the statute its proper setting instead of harking back to gross negligence, the term culpable negligence should be construed to mean a negligence of a higher degree than that which in civil cases is held to be gross negligence, and must be a negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and that this shall be so clearly evidenced as to place it beyond every reasonable doubt.'

Do the facts of this case bring appellant within the foregoing definition of culpable negligence?

Twenty seven witnesses testified in this case. In addition, photographs were taken of the scene and of the physical conditions of the motor vehicles after the wreck. It would unduly lengthen this opinion, and we deem it unnecessary, to detail the testimony of these witnesses. It is sufficient to set forth the pertinent ultimate facts which the evidence amply justified the jury in finding. These facts are:

The accident occurred on Highway 61 about four miles north of Port Gibson, Mississippi. The weather was cloudy and rainy. Tillson, in a Pontiac automobile, was driving south alone. Appellant and one Kelly were traveling north in a ton and a half refrigerator Ford Truck. Appellant was driving. There was a headon collision between the two vehicles. Tillson was instantly killed. This is a concrete highway. It extends generally north and south. Beginning a short distance north of the place of the accident it curves slightly to the left. At the point of collision and for some half mile or more south thereof the road is practically straight and level. Witnesses detected the odor of intoxicants upon appellant. He was driving at a rapid and unlawful speed. His truck was weaving from one side of the road to the other. His truck had gotten into the left, or west lane, of the highway. The left rear dual wheel of the truck was upon the dirt shoulder west of the pavement of the west lane. In other words, appellant was on the wrong side of the road--so much so that the right front of his truck hit the right front of the Pontiac. The force of the impact was so great that he drove the Pontiac back north some thirty feet, and when the vehicles came to rest the fronts were tied together, the Pontiac having been turned about so that the front end thereof was in a northeasterly direction. All broken parts, oil and debris, tracks and skid marks showed the collision occurred entirely in the west lane. Tillson was driving in a careful manner and on his proper side of the highway. The great preponderance of the evidence sustains the foregoing conclusions. Certainly the jury was justified in so deciding. It is true appellant contended that Tillson was on the wrong side of the road, but his testimony is indefinite and unsatsifactory, and he is contradicted by a number of witnesses. For instance, before the trial he made a statement that Tillson as he approached appellant, had his hand out the left front window as if giving a signal he would go to the left. However, it developed, without dispute, that after the wreck this left window was entirely up and it was impossible for that to have been the fact. In view of that fact, appellant, when on the stand, changed his former statements and said Tillson was using his hand inside of his own car in such manner as to lead appellant to think he would turn to the left. On the stand he said, 'His hand seemed to be in his window * * * It...