Gandy v. State, No. 51148

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtPATTERSON
Citation373 So.2d 1042
Docket NumberNo. 51148
Decision Date15 August 1979
PartiesUlysses S. GANDY v. STATE of Mississippi.

Page 1042

373 So.2d 1042
Ulysses S. GANDY
v.
STATE of Mississippi.
No. 51148.
Supreme Court of Mississippi.
Aug. 15, 1979.

Page 1043

Walker & Turner, Randolph Walker, West Point, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, BROOM and BOWLING, JJ.

PATTERSON, Chief Justice, for the Court:

Ulysses S. Gandy appeals from his second conviction of manslaughter. In Gandy v. State, 355 So.2d 1096 (Miss.1978), we reversed Gandy's conviction and remanded the case to the Circuit Court of Oktibbeha County for a new trial. This trial again culminated in a verdict of guilty and a sentence of ten years in the state penitentiary.

Gandy assigns as error:

1. The court committed reversible error in overruling appellant's request for peremptory instruction and motion for new trial on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence.

2. The court committed reversible error in refusing Instruction D-13.

3. The court committed reversible error in admitting into evidence State's Exhibits 1, 5 and 7.

Page 1044

4. The court committed error by not giving the jury a recess for food or refreshments during its deliberations.

At approximately 10:30 on the evening of June 26, 1976, the appellant was involved in a two-car collision on Mississippi State Highway 25 about four miles south of Starkville. The highway runs generally in a north-south direction, with an unobstructed view in both directions on a straight stretch of road at the scene of the accident.

The appellant was driving a Pontiac automobile in a southerly direction and Daniel Palmer was driving a Toyota automobile in a northerly direction when the collision occurred. Although the appellant was not seriously injured, Daniel Palmer and the two passengers in his automobile were killed. No person now living witnessed the collision except Gandy though a number of persons arrived at the scene shortly after the two automobiles had come to rest following impact.

The testimony concerning the positions of the automobiles after impact conflicted. Jerry Devine, an acquaintance of Gandy, testified that he was the second to arrive at the scene. He found the Toyota in the northbound lane of the highway headed north and the Pontiac in the southbound lane headed south with its left front wheel on the center line of the highway. Several other witnesses who arrived at the scene shortly after the collision testified they observed both vehicles several feet apart in the northbound lane of the highway, the Pontiac headed south and the Toyota headed north with debris from the collision concentrated in the northbound lane between the two.

Testimony concerning Gandy's intoxication at the time also conflicted. Jerry Devine testified that although he did not converse with Gandy he did stick his head inside Gandy's automobile shortly after the accident while he helped an officer remove Gandy's wallet. Devine stated that although he did not himself drink, he knew the smell of alcohol and smelled none in Gandy's car. Dr. Conner, a longtime physician of appellant and his family, treated Gandy beginning at about 11:30 p. m. following the accident. Based upon his contact with Gandy at the time of treatment, he was of the opinion that Gandy had not been drinking. He noted that Gandy cooperated in the emergency room and suggested that natural deficiencies in his speech which were known to him might have made Gandy appear less lucid to others.

Bobby Poe, another acquaintance of Gandy, spent about fifteen minutes with Gandy at the hospital X-ray room late on the night of the accident. Poe had difficulty remembering who assisted him in the X-ray room that night but said he did remember that he smelled no alcohol about Gandy's person. Also, at about 1:30 a. m., some three hours after the accident, a nurse noted on a medical report that Gandy appeared "alert and oriented."

On the other hand, nine witnesses testified to various circumstances which suggested that Gandy was extremely intoxicated at the time of the collision. Witness Benny Rogers testified that at the scene of the collision he placed his head in the open window of Gandy's car and detected a "strong" odor of alcohol. Highway Patrolman R. N. Pearson stated that the smell of alcohol was "very evident inside the car and around . . . Mr. Gandy." Constable Robert Howell detected "odors of beer" in Gandy's car and stated that Gandy "was drunk" when he spoke with him at the scene. Chief Deputy Sheriff Dell Wilson also talked with Gandy at the scene; before Gandy was moved from his car, Wilson detected "a very strong odor of liquor and beer" about Gandy's person. He further testified that Gandy at that time did not appear to be "in control of his faculties," concluding that Gandy "was intoxicated." Highway Patrolman Lynn Christopher "could . . . smell liquor" in Gandy's car and noticed "a beer can and an empty whiskey bottle on the floorboard." Also, when he saw Gandy once more, about an hour later in the hospital, he "could smell liquor" on Gandy's breath. Christopher testified that Gandy was "very intoxicated" on the night of the accident.

Page 1045

Medical technician Rick Hailey stuck his head in Gandy's car before Gandy was removed from it and detected a "very strong" odor of alcohol on Gandy's breath. Another medical technician, Dan Seale, helped remove Gandy from his car. At that time, he noticed that Gandy "smelled like alcohol" and concluded that Gandy was "drunk." In describing the strength of the odor, Seale stated, "on a scale of one to ten I'd say ten." In the hospital that night, X-ray technologist Rebecca Walker "came as close as a foot away from (Gandy)," smelled the odor of alcohol, and concluded that Gandy had been "drinking."

Finally, Melinda Richardson, a registered nurse who adjusted a cervical collar on Gandy at the collision scene, accompanied him to the hospital, and helped suture his facial cuts, "smelled a very strong odor of alcohol on his breath." Several of these witnesses testified that on the night of the accident Gandy spoke in a slurred, incoherent fashion. One of the officers testified that at the hospital on the night of the accident Gandy stated, "(m) e and some dudes drank some whiskey and I drank three or four cans of beer."

Leroy Tate testified that about 2:00 p. m. on the eventful day he, Gandy, and Gandy's brother purchased a case of 16-ounce cans of beer which they divided among...

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122 practice notes
  • Robinson v. State, NO. 2014–KA–01038–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 19, 2018
    ...presented a factual dispute for jury resolution." Groseclose v. State , 440 So.2d 297, 300 (Miss. 1983) (quoting Gandy v. State , 373 So.2d 1042, 1045 (Miss. 1979) ). Furthermore, we have considered the testimony cited by Robinson and conclude that it was not material to the outcome of the ......
  • Franklin v. State, No. 2012–KA–01496–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 8, 2014
    ...disbelieve, accept or reject the utterances of any witness.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983) (quoting Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979) (citing Shannon v. State, 321 So.2d 1 (Miss.1975))). We agree. Therefore, we find no error in the trial court's admissio......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...credibility of conflicting testimony and the credibility of the witnesses, it is the jury's duty to resolve the conflict. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979); Shannon v. State, 321 So.2d 1, 2 (Miss.1975); Bond v. State, 249 Miss. 352, 356-57, 162 So.2d 510, 512 (1964). The jury......
  • Ross v. State, No. 1998-DP-01038-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 26, 2007
    ...this Court held: Jurors are permitted, and indeed have the duty to resolve the conflicts in the testimony they hear. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). Any conflicts in the testimony of witnesses is the province of the jury. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)......
  • Request a trial to view additional results
122 cases
  • Robinson v. State, NO. 2014–KA–01038–SCT
    • United States
    • United States State Supreme Court of Mississippi
    • April 19, 2018
    ...presented a factual dispute for jury resolution." Groseclose v. State , 440 So.2d 297, 300 (Miss. 1983) (quoting Gandy v. State , 373 So.2d 1042, 1045 (Miss. 1979) ). Furthermore, we have considered the testimony cited by Robinson and conclude that it was not material to the outcome of the ......
  • Franklin v. State, No. 2012–KA–01496–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • May 8, 2014
    ...disbelieve, accept or reject the utterances of any witness.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983) (quoting Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979) (citing Shannon v. State, 321 So.2d 1 (Miss.1975))). We agree. Therefore, we find no error in the trial court's admissio......
  • Nicholson v. State, No. 57471
    • United States
    • United States State Supreme Court of Mississippi
    • March 16, 1988
    ...credibility of conflicting testimony and the credibility of the witnesses, it is the jury's duty to resolve the conflict. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979); Shannon v. State, 321 So.2d 1, 2 (Miss.1975); Bond v. State, 249 Miss. 352, 356-57, 162 So.2d 510, 512 (1964). The jury......
  • Ross v. State, No. 1998-DP-01038-SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • April 26, 2007
    ...this Court held: Jurors are permitted, and indeed have the duty to resolve the conflicts in the testimony they hear. Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979). Any conflicts in the testimony of witnesses is the province of the jury. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983)......
  • Request a trial to view additional results

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