Jabron v. State

• Decision Date: 11 February 1935
• Docket Number: 31619
• Citation: 159 So. 406,172 Miss. 135
• Court: Mississippi Supreme Court
• Parties: JABRON v. STATE

159 So. 406

172 Miss. 135

JABRON v. STATE

No. 31619

Supreme Court of Mississippi

February 11, 1935

Division B

1 HOMICIDE. Negligence.

Negligence as regards either civil or criminal case, must be predicated on action or nonaction accompanied by actual or implied knowledge of facts which make result not only probable, but one reasonably to be anticipated; mere possibility of result being insufficient.

2 HOMICIDE.

Evidence that accused gave six year old child three swallows of whiskey, that child died of alcoholic poisoning, and that smaller quantities of whisky would be necessary to endanger life of child than in case of adult held insufficient to sustain conviction of manslaughter under culpable negligence statute, in absence of expert testimony that three swallows of whisky is sufficient, as probability, to kill or seriously injure healthy six year old child (Code 1930, section 1002).

3. CRIMINAL LAW.

Judicial notice cannot be taken that three swallows of whisky is sufficient to cause, as probability, death of, or serious injury to, healthy six year old child.

HON. EDG. M. LANE, Judge.

APPEAL from circuit court of Simpson county HON. EDG. M. LANE, Judge.

Sam Jabron was convicted of manslaughter, and he appeals. Reversed, and appellant discharged.

Reversed, and appellant discharged.

Martin & Berry, of New Hebron, for appellant.

The court below should have sustained the motion of defendant for a peremptory instruction.

Covington County v. Morris, 84 So. 462.

This indictment is framed, in a way, under section 1211, Code 1930, but the whole evidence in the case was based on section 1002, Code 1930, which holds the killing of a human being, by the act, procurement, or culpable negligence of another and without authority of law manslaughter.

There was no proof that Jebron willfully, unlawfully and feloniously killed and slew a human being. The only issue made in the proof is the negligence.

State v. Prude, 76 Miss. 543; Sims v. State, 149 Miss. 171.

The state proved the death of the child, but we submit that there is no ample and competent proof that any act of this defendant caused the death of the child.

30 C. J. 287, sec. 531; 16 C. J. 749, sec. 1532; Pearson v. State, 97 Miss. 841, 53 So. 689; 16 C. J. 756, sec. 1554; Prewitt v. State, 106 Miss. 82, 63 So. 330; Taylor v. State, 108 Miss. 18, 66 So. 321; Pitts v. State, 43 Miss. 472, 2 Mor. St. Cas. 1655; Raybon v. State, 115 Miss. 730, 76 So. 639.

The discrepancies are significant, we submit, intesting Daniel Berry's story of seeing Jabron give the child whiskey.

We respectfully submit that this was not sufficient to convict defendant and that the case should be reversed for a new trial or that the appellant be discharged.

M. & O. R. R. v. Bennett, 127 Miss. 413, 90 So. 113; 48 So. 721; 98 Miss. 28, 53 So. 351; Fore v. R. R., 87 Miss. 218; 12 S. & M. 604; 8 S. & M. 327; Rawls v. State, 105 Miss. 406.

It may be true that if one commits an act in utter disregard of consequences that the recklessness will supply the criminal intent. There must be actual or constructive intent to do the thing which constitutes the crime; otherwise there is no criminal act.

City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; State v. Irvine, 52 So. 567, 571; Sims v. State, 149 Miss. 171, 115 So. 217; Gregory v. State, 152 Miss. 133, 118 So. 906; 1 Bishop's New Crim. Law, sec. 321.

The jury must not only believe defendant guilty beyond every reasonable doubt arising out of the evidence or lack of evidence of having given the child whiskey, willfully, unlawfully and feloniously, as charged in the indictment or that it was given him culpably negligently, but the jury must believe that the child could not have died and did not die from any cause except from the whiskey and that with this same degree of belief they should have been instructed to the effect that no one except the defendant could have given the child the whiskey.

Haywood v. State, 90 Miss. 461, 43 So. 614; Permenter v. State, 54 So. 949; Hogan v. State, 127 Miss. 407, 90 So. 99.

E. B. & H. J. Patterson, of Monticello, for appellant.

The entire record reflects nothing in the way of certainty regarding the connection between the alleged whiskey which the child is supposed to have drunk and its death, but on the other hand, shows conclusively a multitude of uncertainties to the extent, as we believe that any finding by the jury in this case in the face of this record could amount to nothing more or less than conjecture pure and simple, and to add further confusion to the situation as made by the record, the State asked and was granted several instructions that were erroneous and prejudicial, particularly in view of the confusing condition made of this case.

It was error to grant the following instruction: "The court instructs the jury for the state that the killing of a human being by the act, procurement or culpable negligence of any person, without authority of law, shall be manslaughter.

Browning v. State, 30 Miss. 656; Oliver v. State, 39 Miss. 526; Cotheran v. State, 39 Miss. 541; Franks v. State, 39 Miss. 705; Evans v. State, 44 Miss. 762; Durrah v. State, 44 Miss. 789.

The prosecution has the burden of proving that a crime has been committed before the jury can proceed to inquire as to who committed it.

16 C. J. 529, sec. 994; 76 Ala. 47; 12 Cyc. 707; State v. Fontenot, 48 La. 220, 19 So. 112.

Turning to our own decisions, we find the following cases which we believe to be authority for our position that the state wholly failed to sufficiently prove the corpus delicti in the case at bar.

Taylor v. State, 66 So. 321; Brown v. State, 49 So. 146; Bourn v. State, 5 So. 626; Floyd v. State, 103 So. 368; Harris v. State, 124 So. 493.

W. D. Conn, Jr., Assistant Attorney-General, for the state.

It shall be sufficient, in an indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased, concluding in all cases as required by the Constitution.

Section 1211, Miss. Code 1930.

Defendant argues certain contradictory statements as between state witnesses and the unreasonableness of certain other testimony. It is the duty of the jury to sift all of the evidence and weigh the testimony as it stands before them in arriving at its verdict.

Hartley v. State, 161 Miss. 667, 137 So. 518.

The defendant cannot switch objections as between the trial court and the Supreme Court, but is bound by the record which he makes in the trial court.

Peters v. State, 158 Miss. 530, 130 So. 695; Boutwell v. State, 165 Miss. 16, 143 So. 479.

In this type of prosecution "intent" to commit manslaughter is unnecessary. Intent is not necessarily involved where "culpable negligence" is involved.

Tillman v. State, 164 Miss. 100, 144 So. 234.

The court cannot give an instruction unless requested so to do in writing and the defendant cannot complain of the failure to give an instruction where none is requested.

Grady v. State, 144 Miss. 778, 110 So. 225; Tatum v. State, 142 Miss. 110, 107 So. 418; Cosey v. State, 161 Miss. 747, 138 So. 344.

Argued orally by Martin & Berry and E. B. Patterson, for appellant.

OPINION

Griffith, J.

Appellant was indicted, tried, and convicted of a charge of manslaughter for the killing of a child between the age of six and seven years. The prosecution was based upon our culpable negligence statute, sec. 1002, Code 1930, and the specific proof which was attempted to be made was that appellant, the defendant, had given the child a sufficient quantity of whiskey to produce death, and that the child died as a result thereof. There is an...