Hurt v. State

• Decision Date: 03 May 1947
• Citation: 201 S.W.2d 988,184 Tenn. 608
• Parties: HURT v. STATE.
• Court: Tennessee Supreme Court

201 S.W.2d 988

184 Tenn. 608

HURT v. STATE.

Supreme Court of Tennessee.

May 3, 1947

Error to Circuit Court, Carroll County; Hugh L. Clarket, Judge.

W. H Hurt was convicted of involuntary manslaughter, and he brings error.

Reversed and remanded.

R. M. Murray, of Huntingdon, for plaintiff in error.

Allison B. Humphreys, Jr., Asst. Atty. Gen., for the State.

GAILOR Justice.

Defendant appeals from conviction of involuntary manslaughter and sentence to a year and a day in the penitentiary for the offense. He assigns error on (1) the sufficiency of the evidence, (2) a part of the Trial Judge's charge to the jury, and (3) the qualification of a juror who had been before the trial, adjudged non compos mentis.

Between 8:30 and 9 p. m., on May 19, 1945, defendant was driving his Buick car southwest on the McKenzie-Milan Highway within the corporate limits of the town of Trezevant. As he approached the intersection of the highway with the road to McLemoresville, he pulled to his left to pass a Ford car driven by State's witness, L. M. Jones, and after passing the Ford and before he had regained the right side of the highway, defendant's car collided with a horse-drawn buggy which was moving east on the McLemoresville road across its intersection with the highway. Traffic on the highway had the right of way and there were 'stop signs' against traffic on the McLemoresville road.

The buggy was being driven by a negro, Buck Adkisson, who was a kinsman of defendant, and Nina Adkisson, Buck's wife with a child, were riding with him in the buggy at the time of the collision. Buck Adkisson and his wife sustained injuries from which they shortly died, and it is for the killing of Buck Adkisson that the defendant was indicted and tried.

As we find it necessary to reverse the judgment and remand the case for a new trial, we think it improper to analyze the evidence in detail or to discuss discrepancies in the testimony of the various witnesses.

The theory of the State's case and the obvious reason for the criminal prosecution was the idea that the defendant was driving while intoxicated, or while under the influence of intoxicating liquor, and that the inebriated condition of the defendant was the cause of the homicide.

A careful study of the evidence discloses that there was not a single witness for either party who testified that the defendant was drunk or under the influence of an intoxicant at the time of the collision. The officers who arrested the defendant, testified that they smelled liquor on his breath, but this is not the essential question. The statute does not prohibit the driving of an automobile with a liquor breath, but for obvious reasons, forbids such driving when the driver is not in full possession of his faculties because he is 'under the influence of an intoxicant.' Code 1932, § 10827. The sheriff, himself, testified positively that the defendant was not drunk.

The State's strongest eye witness, a white man, L. M. Jones, whose car the defendant passed on the highway immediately before the accident, showed some zeal to help the State's case. He made his own measurements of the physical factors and evidently took pains to prepare his testimony. However, he testified positively that the defendant was not under the influence of intoxicating liquor when the defendant got out of his car and assisted the injured couple immediately after the accident. The defendant introduced a number of witnesses who testified that defendant was not intoxicated before or immediately after the accident. Among these witnesses was a former employer of defendant, L. E. Jones, who was at the scene of the accident five minutes after it happened, and helped defendant to get an ambulance. He testified positively that the defendant was not at the time intoxicated nor under the influence of an intoxicant. We conclude from a careful consideration of all the evidence, that there was no evidence to support the charge that defendant was driving while intoxicated or while under the influence of an intoxicant.

Since, therefore, the conviction cannot be sustained on the proof of drunken driving, the conviction can only be sustained within the limits of the indictment, by proof that defendant was guilty at the time of the collision, of such 'gross, culpable and reckless' carelessness as constituted criminal negligence.

The only negligence charged or proved was that defendant was driving (a) at excessive speed under the circumstances, (b) on the left side of the road. Under the attendant circumstances here, such driving does not constitute conduct 'malum in se,' but is merely 'malum prohibitum.' In a case where these identical charges of negligence were under consideration, it was said: 'See Holder v. State, 152 Tenn. 390, 277 S.W. 900, where the authorities are reviewed and the distinction is pointed out between unlawful acts malum in se and those merely malum prohibitum, to which driving beyond the speed limit fixed by law belongs.' Hiller v. State, 164 Tenn. 388, 392, 50 S.W.2d 225, 227.

Since defendant was guilty of conduct only 'malum prohibitum' it was necessary for the State to prove beyond reasonable doubt that defendant was guilty of such gross and culpable negligence as evidenced a reckless disregard of the safety of other users of the highway, so that a...