Hatcher v. State

• Decision Date: 18 February 1957
• Docket Number: No. 40383,40383
• Citation: 230 Miss. 257,92 So.2d 552
• Parties: Travis HATCHER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 552

92 So.2d 552

230 Miss. 257

Travis HATCHER v. STATE of Mississippi.

No. 40383.

Supreme Court of Mississippi.

Feb. 18, 1957.

Russell Wright, Meridian, for appellant.

Joe T. Patterson, Atty. Gen., by John H. Price, Jr., Asst. Atty. Gen., for the State.

ROBERDS, Presiding Justice.

About eleven o'clock on the morning of June 7, 1955, a collision occurred between a Cadillac automobile and a bicycle on U. S. Highway 45 about 4 1/2 miles north of Meridian, Mississippi. Hatcher, the appellant, was the driver of the automobile. He was the only person in her car. Bobby Green, a small boy, was the rider of the bicycle. Bobby was killed instantly. Hatcher was indicted for, and convicted of, manslaughter under the culpable negligence statute. Section 2232, Miss.Code 1942, and sentenced to the state penitentiary for seven years.

He appealed to this Court. He contends: (1) that he was entitled to a peremptory instruction, or, if not, (2) the verdict was against the great weight of the evidence and we should remand the case for trial before another jury, and (3) that, in any event, we should reverse and remand the case because of improper remarks made by the district attorney in his closing argument to the jury. We will consider the first two contentions together. The State introduced seven witnesses. Hatcher and one other witness testified in his behalf. The evidence of the State established these facts: U. S. Highway 45 is a paved highway, it extends generally north and south. At the point of the accident, and for some distance north and south thereof, it is straight and level, and vehicles thereon may be seen a long distance both north and south of the scene of the collision. Just off the road right-of-way and on the west side thereof, and a short distance south of the point of collision, were located a gasoline filling station and a cafe. These buildings faced east upon the highway.

Hatcher was traveling north. Before reaching the cafe and gas station he passed a truck also traveling north. He was running 75 to 90 miles per hour. As he approached the cafe he began to blow his horn and continuously looked towards the cafe and station as if to attract the attention of someone. He continued north, running at the same rate of speed. Bobby Green was riding north on his bicycle, within about 2 feet of the east edge of the pavement. Hatcher's automobile struck the bicycle at this point. It had not slowed down. The child's body was hurled into the air. It turned over a number of times in the air above the top of the car. The automobile ran from under the body. The body came to rest on the concrete 150 feet north of the point of impact. The child's head was severed from the body and it fell on the concrete several feet from the remainder of the body. A hole was knocked through the right side of the windshield of the automobile and there were some marks on the right side of the car made apparently as a result of contact between the automobile and the bicycle. There were no skidmarks south of the point of impact. The first skidmarks began 5 feet north of the point of impact. From that point the car skidded on all four wheels 90 feet, and thence on the left tires 240 feet, making a total in all of 330 feet the automobile skidded after hitting the bicycle and the little boy. Eyewitnesses testified that Bobby did not turn or swerve to the left. They swore he was continuing straight ahead. The Cadillac car hit the bicycle at a point 2 feet from the right, or east, edge of the pavement. No vehicle was approaching from any direction. The truck Hatcher had passed south of the cafe pulled into the gasoline station. There was nothing on the highway to obstruct or interfere with clear vision north and south, and no reason appears why Hatcher could not have pulled to his left and passed the bicycle.

Hatcher testified. He said he was traveling some 60 miles per hour. He admitted he was constantly blowing his horn as he passed the cafe and gas station and looking in that direction. He said: 'I probably glanced over that way to see if anything was pulling out or anything, but I did not stare over there.' He admitted he saw the little boy traveling north in the same lane 100 yards ahead of him, and that he was near the east edge of the pavemant. He said he began to put on his brakes about 30 feet before he hit the child. His theory of how the accident happened is that Bobby swerved to the left into the Cadillac. However, he was indefinite about that. When asked whether the car struck the bicycle or the bicycle struck the car, he replied: 'I think he run into the side of the car.'

The other witness for Hatcher was J. V. Duckworth. He was Sheriff of Lauderdale County. It was his automobile Hatcher was driving. He had left it with Hatcher, who operated an automobile repair shop, to regulate the carburetor and adjust the doors. He said when the carburetor got hot the motor would cut out when running between 65 and 70 miles per hour. He did not know whether the engine was hot on this occasion, nor did he know whether the engine would run smoothly again when 'you got up to 80 or 90.'

This Court has laid down the rule by which liability is to be tested in culpable negligence cases. It did that in Smith v. State, 197 Miss. 802, 20 So.2d 701, 704, 161 A.L.R. 1, rightfully regarded as one of the leading cases in the United States on the question. After a learned and thorough discussion of the question, the Court summed up the test in this language: 'In other words, 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.' The tests applied in the Smith case have been adopted and restated in subsequent cases. Reynolds v. State, 199 Miss. 409, 24 So.2d 781; Henderson v. State, 199 Miss. 629, 25 So.2d 133; Downs v. State, 206 Miss. 831, 41 So.2d 19; Coleman v. State, 208 Miss. 612, 45 So.2d 240; Sullivan v. State, 213 Miss. 14, 56 So.2d 93; Hynum v. State, 222 Miss. 817, 77 So.2d 313; Hathorn v. State, Miss., 82 So.2d 653. Now, applying the rule to the facts of this case, it is clear Hatcher was guilty of culpable negligence, at least the jury was amply justified in so finding. The all-important fact is the impact took place within 2 feet of the right edge of the pavement. Hatcher admits that he saw the child 100 yards ahead of him. He made no effort to turn his car to the left and pass the child, although no vehicle was approaching from the north in the west lane of travel. His theory is the child either turned in ahead of him or swerved to the left into the side of the automobile. Evidently he hit the child head-on, because the undisputed proof is the body of the child was hurled several feet into the air above the automobile and came to rest on the pavement 150 feet north of the point of impact. Had the bicycle run into the right side of the automobile, naturally the child would have been thrown to the cast and perhaps entirely off the pavement. However, in either case Hatcher was guilty of culpable negligence in hitting the child under the circumstances, certainly the jury was amply justified in so finding. Brooks v. State, 192 Miss. 121, 4 So.2d 886; Henderson v. State, supra; Cutshall v. State, 203 Miss. 553, 35 So.2d 318; Hynum v. State, supra; Dendy v. State, Miss., 79 So.2d 827.

In his closing argument, the district attorney said: 'You see these good Lauderdale County people sitting out in this audience, they are wondering whether this sort of thing is going to be licensed.' Counsel for defendant objected to this remark and the objection was overruled. The statement should not have been made and the trial court should have sustained the objection. However, the question is whether the remarks require a reversal and remand and retrial of this case. It has given us much concern but we have concluded that, under the circumstances of this case, the use of this language does not call for a reversal and remand.

Able counsel for Hatcher cites and relies upon Collins v. State, 100 Miss. 435, 56 So. 527, 528. In that case a member of the Negro race was being tried for the killing of a member of his own race. The prosecuting attorney said: 'This bad nigger killed a good nigger. The dead nigger was a white man's nigger, and these bad niggers like to kill that kind. The only way you can break up this pistol toting among these niggers is to have a necktie party.' Counsel for defendant stated in his argument that a witness for the State had assisted in hiring a special prosecutor and was taking an interest in the case. The prosecuting attorney answered that by saying to the jury: 'I will tell you who employed me to prosecute this nigger. It was the people of the community, white and black.' Naturally this Court held that the use of this language constituted reversible error. The Court in that case said: 'The ordinary, average juror is very easily influenced by a statement to the effect that the people of the community, both white and black, employ one to prosecute. The very fact that this is done is the highest evidence that the community desires the party convicted.' In addition, this was, to some extent, an appeal to racial prejudice. The facts in the Collins case, however, it is readily seen, are quite different from the facts in the case under consideration.

In Nelms & Blum Co. v. Fink, 159 Miss. 372, 131 So. 817, 820, this Court, speaking through a classical opinion by Judge George Ethridge, worthy, we think, of...