Duck v. State, 46354

• Decision Date: 10 May 1971
• Docket Number: No. 46354,46354
• Parties: Joe DUCK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 689

247 So.2d 689

Joe DUCK v. STATE of Mississippi.

No. 46354.

Supreme Court of Mississippi.

May 10, 1971.

Warren E. Cox, Holly Springs, Mose E. Kincaid, Batesville, Clell G. Ward, Greenville, for appellant.

A. F. Summer, Atty. Gen., by Velia Ann Mayer, Sp. Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice:

Appellant, Joe Duck, was indicted, tried and convicted in the Circuit Court of Oktibbeha County for the crime of manslaughter by culpable negligence. He was sentenced to serve a term of fifteen years in the State Penitentiary, and from this conviction and sentence, he appeals. We affirm.

The evidence on behalf of the state established that about 7 p.m. on February 28, 1970, appellant, who had been drinking, was proceeding west on U.S. Highway 82 in a Pontiac automobile. Mr. Royce McMinn was proceeding east driving his automobile on the highway meeting appellant. This highway is a two-lane highway with one lane for eastbound traffic and one lane for westbound traffic. Just before the two cars met, appellant, while going up a hill at a high rate of speed, pulled out from behind a transport truck into McMinn's lane of traffic, and the two cars collided practically head-on. McMinn had his lights on and there was nothing to keep appellant from seeing his car approaching when he pulled out from behind the truck. There were no skid marks indicating that appellant made any effort to stop. McMinn suffered multiple severe injuries from which he died shortly thereafter.

Appellant's assignments of error are as follows:

I. That the Court below erred in permitting the State to prove an essential element of its case by hearsay testimony;

II. That the Court below erred in admitting inflamatory statements by the physician concerning describing the decedent's injuries III. That the Court below went against the overwhelming weight of the evidence in returning a verdict of guilty against the defendant; and

IV. That the Court below erred in giving the State Jury Instruction Number 2, which commented upon the evidence and denied the defendant his right to have the jury decide question of fact in the trial.

The record reflects that the deputy sheriff, Harpole, investigated the accident, and, as a part of his investigation went to the hospital where the appellant had been carried after the accident. He talked to him there in the presence of appellant's father. Harpole testified that he noticed a strong smell of alcohol on appellant's breath. He turned to appellant's father and asked him to come over and smell, which he did. Harpole was allowed to testify over appellant's objection that appellant's father said, 'Mr. Bill, he has sho' been drinking, hadn't he? He sho' has.' The trial court in overruling the objection to this testimony observed that the statement by appellant's father was made in the presence of appellant. Appellant's father was not called as a witness by either side. Appellant contends that the admission of this hearsay testimony was highly prejudicial and allowed the state to prove one element of the crime by hearsay testimony. The doctrine of accusatory statements made in the presence and hearing of the defendant is admissible, as admissions implied from silence are well established in this state. See Jones v. State, 228 Miss. 296, 87 So.2d 573 (1956); Thurmond v. State, 212...