Cutshall v. State
| Decision Date | 10 May 1948 |
| Docket Number | 36618. |
| Citation | 203 Miss. 553,35 So.2d 318 |
| Court | Mississippi Supreme Court |
| Parties | CUTSHALL v. STATE. |
J. O. Clark, of Iuka, and W. C. Sweat, of Corinth for appellant.
Greek L. Rice, Atty. Gen., and R. O. Arrington Asst. Atty. Gen., for appellee.
On the former appeal of this case, a reversal was order because of a prejudicially erroneous instruction granted in favor of the State. We had first rejected the contention then made as to the insufficiency of the evidence to present an issue for the jury as to whether or not the defendant Floyd Cutshall was guilty of manslaughter by reason of his alleged culpable negligence in connection with the death of Spangler Gregson who was killed when struck by a Ford pick-up truck driven by the accused; that is to say, the case was remanded for a new trial solely because of the erroneous instruction. Cutshall v. State, 191 Miss. 764, 4 So.2d 289.
Only two grounds of error assigned are argued on this appeal. First, that the facts and circumstances testified to when the conviction now appealed from was had were not such as to show a willful or wanton disregard on the part of the accused for the safety of human life on the highway on the occasion in question so as to justify his conviction of the crime of manslaughter. Second, it is urged that the trial court was in error in permitting Elton Prewitt, who was riding with the accused at the time of the accident, and who was introduced as a witness for the State, to use as a basis for his testimony a written statement given by him to the sheriff and other local officers on the day following the accident and his own arrest and imprisonment on such charge during the year 1940, more than six years prior to the trial.
The decision on the former appeal was rendered prior to that in the case of Smith v. State, 197 Miss. 802, 20 So.2d 701, 161 A.L.R. 1, and it is insisted now that the case made for the prosecution on the second trial of the defendant Cutshall is not as strong as that made against him prior to the first appeal, and that under the rule announced in the Smith case the defendant in the case at bar was entitled to a directed verdict of acquittal.
We have endeavored to determine the sufficiency of the evidence to sustain culpable negligence in accordance with the rule established in the case of Smith v. State, supra, which reviewed our previous decisions defining such negligence and then held that a higher degree of negligence would be required to support a conviction of manslaughter through culpable negligence than had been theretofore held to be necessary.
The record now before us discloses that when Gregson was run over and killed by the pick-up truck driven by the defendant Cutshall, he was assisting one Leon Deaton in the work of sprinkling a short link in a State highway where the same had been freshly graveled for repavement for a distance of 300 or 400 yards, after the original pavement became in a bad condition of repair. That the accident occurred shortly after 10 o'clock at night, when the truck of the Highway Department on which there was a water tank was being driven by the said Deaton and going in a westerly direction, at a time when the deceased, Spangler Gregson, was walking behind the water truck to turn on and off the water, and was waving an efficient flashlight furnished him by the Highway Department to flag the traffic so as to prevent a collision with the water truck and injury to any one at the place where these men were at work. This extra precaution was taken because the water truck was moving at a speed of only about three miles per hour in the nighttime.
The defendant Cutshall and his companion Prewitt were heard and seen to be approaching the water truck from the rear by the deceased Gregson as he walked behind the water truck and was waving his flashlight back and forth across the highway as an additional warning to the approaching pick-up truck, aside from the warning afforded by the lighted-up 'Slow' signs and other signals hereinafter mentioned. And he made a dying declaration in the presence of his mother and a physician in regard to the accident, the competency of which statement as evidence for the State is unchallenged. He stated to them in substance that he had a flashlight and flagged them, and it was shown by all the other witnesses that all of the other lights (including those on the truck and those which lighted up the road sign) were all burning as they ran over him, and he stated that he could not get out of the way, meaning after he saw they were still proceeding toward him on the right side of the highway, going west.
Moreover, the driver of the water truck testified that while he could not see his co-worker Gregson behind the truck at that instant, he did, nevertheless, observe the beams of light from his flashlight as he waived it back and forth across the highway and the right-of-way ditches until he heard Gregson 'holler' when struck by the pick-up truck which then went around to the left of the water truck, going in the same direction as aforesaid, and proceeded on its way without stopping, after having struck the left of the rear end of the water truck in passing. And, it is shown that when the defendant Cutshall and his companion Prewitt were taken in custody by the officers, the front light on the right-hand side of the pick-up truck had been broken out and its fender dented; that there was also blood, hair, and pieces of flesh on this fender, which had come from the mangled body of the said Gregson, and that his belt buckle was found about the hood of the pick-up truck.
The witness Prewitt who was also riding with the defendant in the pick-up truck, as aforesaid, was placed in jail along with the defendant Cutshall, and on the next day, August 12, 1940, he have the written statement to the officers, either while under arrest or immediately after being released from arrest, and with which statement he was permitted to try to refresh his memory on the trial in January 1947. The manner in which he was interrogated about the matter, over the objection of the defendant, is hereinafter discussed on the second ground assigned as error.
At the trial, the witness Prewitt's testimony, following a reading and examination by him of the written statement which he had given, was to the effect that they did not see the water truck until they had approached at a distance of about fifty feet from the rear, and that although he and the defendant had been drinking heavily during the afternoon and up until the time of the accident, the defendant was able to drive the truck all right, that the witness did not see the said Gregson at all, but knew that they had hit something and suggested to the defendant, after they had passed the...
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Livingston v. State, 57198
...a witness to refresh his recollection from a memorandum. See Gardner v. State, 455 So.2d 796, 799 (Miss.1984); Cutshall v. State, 203 Miss. 553, 35 So.2d 318 (1948). Our new Rule 612, M.R.E., incorporates and in some respects broadens our pre-Rules precedent. See official comment to Rule 61......
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