Gandy v. State
| Decision Date | 01 March 1978 |
| Docket Number | No. 50288,50288 |
| Citation | 355 So.2d 1096 |
| Parties | Ulysses GANDY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
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 SMITH, ROBERTSON and LEE, JJ.
LEE, Justice, for the Court:
Ulysses Gandy appeals from a conviction of manslaughter by culpable negligence and sentence of ten (10) years by the Circuit Court of Oktibbeha County. He assigns the following errors in the trial below:
(1) The court erred in overruling appellant's request for peremptory instruction and motion for new trial on the ground that the verdict was contrary to the overwhelming weight of the evidence.
(2) The court erred in overruling appellant's motion for mistrial because of a prejudicial statement made by the district attorney.
(3) The court erred in refusing defendant's requested Instruction No. D-18.
(4) The court erred in refusing defendant's requested Instruction No. D-15.
(5) The court erred in admitting in evidence the State's Exhibit No. 2.
On June 26, 1976, at approximately 10:30 p. m., appellant (age 29) was involved in a two-car collision on Mississippi State Highway 25 about four (4) miles south of Starkville. The highway runs in a north-south direction, appellant was driving his Pontiac automobile south on said highway, and Daniel Palmer, accompanied by two female companions, was driving a Toyota automobile north. The vehicles collided head-on. Palmer and the passengers in his car, all students at Mississippi State University, were killed. Appellant was not seriously injured. There were no witnesses to the collision except appellant.
About 1:15 p. m. on said date appellant drank one-fourth (1/4) pint of vodka. Later in the afternoon and evening he drank beer. Witnesses at the scene of the collision testified that they detected the odor of alcohol in the Pontiac automobile and on appellant, and that he was intoxicated. A blood sample was taken from appellant and a test of same at the Mississippi State Crime Laboratory indicated that it contained .246 ethyl alcohol by weight which by law is presumptive of intoxication. (Mississippi Code Annotated § 63-11-39 (1972)). The attending physician for appellant and at least one other witness testified that they did not smell the odor of alcohol on appellant and, in their opinions, he was not intoxicated.
Six (6) persons, including three (3) officers who arrived at the scene, testified that both vehicles were in the northbound lane of the highway approximately seven (7) to eight (8) feet apart, that the Pontiac was headed south in the northbound lane, that the Toyota was headed north in the northbound lane, and that debris, glass and mud were in the northbound lane. Jerry Devine, the first witness to arrive at the scene of the collision, testified that the Toyota was in the northbound lane headed north and that the Pontiac was in the southbound lane headed south with the left wheels about the center line of the highway. The Pontiac was moved before photographs were taken.
Appellant testified that he was driving south in the southbound lane and the Toyota suddenly came over into the southbound lane and collided with his automobile.
Did the court err in refusing appellant's request for a peremptory instruction, and, in the alternative, was the verdict of the jury contrary to the overwhelming weight of the evidence?
Appellant contends that his conviction is based upon (1) the apparent intoxication of appellant, (2) the accident apparently occurred in the deceased's lane of travel, and (3) the appellant did not have a valid driver's license at the time of the collision. He argues that there is no proof in the record that the alleged intoxication of appellant had any causal connection to the collision. He relies upon Cutshall v. State, 191 Miss. 764, 4 So.2d 289 (1941). However, the State's proof indicated that the collision occurred head-on between the vehicles in the northbound lane, which was the opposite lane of travel for appellant. The jury accepted that version of the case, and could reasonably believe that appellant's vehicle traveled south in the northbound lane as a result of his intoxication.
In passing upon the request for a peremptory instruction, all evidence favorable to the State must be assumed as true, together with reasonable inferences that may be drawn from same, and, if there is enough in the record to support a verdict, the request for peremptory instruction should be overruled. Warn v. State, 349 So.2d 1055 (Miss.1977). Applying this rule, we are of the opinion that the evidence for the State is sufficient to support a verdict of guilty. Likewise, the verdict is not against the overwhelming weight of the evidence.
II.
Did the court err in overruling appellant's motion for mistrial because of a prejudicial statement made by the district attorney in his argument?
During his closing argument, the district attorney made the following statement
Appellant contends the statement by the district attorney that "three people were killed" in the collision constituted error, since appellant was being tried only for the death of Daniel Palmer. The testimony indicated that all three individuals in the Toyota were killed, and the same was properly admitted as a part of the res gestae. While the district attorney should not have alluded to the fact that all three persons were killed, the jury was certainly aware of their deaths and it is difficult to see how the jury could have been prejudiced by such statement. Ford v. State, 226 So. 378 (Miss.1969). Consequently, there is no merit in this assignment.
III.
Did the court err in refusing appellant's requested Instruction D-18?
Instruction D-18 (Appendix I) told the jury that there are several factors which could be considered in determining whether or not defendant was intoxicated at the time of the accident, and then...
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Welch v. State
...the defense is the defendant's own testimony. U.S. v. Young, 464 F.2d 160, appeal after remand 482 F.2d 993 (5th Cir.1973); Gandy v. State, 355 So.2d 1096 (Miss.1978). The preceding instruction presented Welch's version of his defense and the facts testified to at trial; accordingly, it sho......
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...such negligence and to the resultant death." Cutshall v. State, 191 Miss. 764, 772, 4 So.2d 289, 292 (1941). See also, Gandy v. State, 355 So.2d 1096, 1098 (Miss.1978); McNamee v. State, 313 So.2d 392, 395 (Miss.1975); Frazier v. State, 289 So.2d 690, 692 (Miss.1974). For example, in Gandy,......
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