Jolly v. State

Decision Date27 November 1972
Docket NumberNo. 46995,46995
Citation269 So.2d 650
PartiesDeWayne (Dee Wayne) JOLLY v. STATE of Mississippi.
CourtMississippi Supreme Court

McLaurin & Nicols, J. Hal Ross, Brandon, for appellant.

A. F. Summer, Atty. Gen., by J. B Garretty, Special Asst. Atty. Gen., Jackson, for appellee.

RODGERS, Presiding Justice.

The appellant, DeWayne Jolly, was indicted on a charge of manslaughter in Rankin County, Mississippi. He was tried during the October Term of the Circuit Court of Rankin County, convicted by the jury and sentenced by the court to serve a term of fifteen (15) years in the state penitentiary. From that verdict and sentence the appellant appeals to this Court.

In the early morning hours of September 8, 1971, the deceased Bobby Cox, the appellant, and two others were drinking and carousing around in a remote wooded area of Rankin County. Around 2 A.M. that morning, the accused and the decedent became involved in a fist fight in which the decedent was severely beaten. Later that morning, the decedent was taken to the Scott County Hospital in Morton where he was treated for his wounds. While the attending physician thought that the decedent's condition was critical, he did not think death was imminent. By September 11, 1971, the decedent had recovered sufficiently in the treating physician's opinion to be discharged from the hospital. However, on September 24, 1971, Cox's condition had deteriorated considerably, and he had to be readmitted to the hospital in Morton. By September 30, 1971, Cox had become comatose and was transferred to the University Hospital in Jackson, Mississippi. Upon diagnosing Cox's malady as a subdural hematoma, surgeons at University Hospital performed an operation in an effort to relieve the pressure on the brain caused by the brain hemorrhage. Unfortunately though, as a result of the subdural hematoma, substantial irreversible damage had already been inflicted upon brain centers which control vital body functions, and Bobby Cox dies on October 4, 1971.

First, the appellant contends that the lower court erroneously authorized the giving of an instruction which mentioned the term 'culpable negligence', but neither that instruction nor any other instruction defines, nor otherwise describes, the term 'culpable negligence'. The challenged instruction reads as follows:

'The Court instructs the Jury for the State of Mississippi that, the involuntary killing of a human being by another person is manslaughter when done by the culpable negligence of such other person without the authority of law. If you believe from all of the evidence in this case beyond a reasonable doubt that the defendant, DeWayne Jolly did strike and beat the decedent, Bobby Cox, with his fists or any other instrument, by an act of culpable negligence on the part of the said defendant, and that the said Bobby Cox died as a result thereof and without authority of law, then it is your sworn duty to find the defendant Guilty as charged.' (Emphasis added.)

We are of the opinion that this instruction should not have been given in the absence of a proper definition of the term 'culpable negligence'. The necessity for imparting to the jury a clear and full understanding of the words 'culpable negligence' has been clearly expressed by this Court since Justice McGehee, in his opinion in Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945), stated:

'. . . (W)e are here strengthening the requirements for a proper definition of culpable negligence, as compared with that heretofore given in our decisions. * * * In other words, culpable negligence should be defined as the conscious and wanton or reckless disregard of the probabilities of fatal consequence to others as a result of the wilful creation of an unreasonable risk thereof.' (Emphasis added.) 197 Miss. at 816-817, 20 So.2d at 705.

The importance of clearly and precisely defining 'culpable negligence' is underscored in a long line of Mississippi cases following the Smith decision. Those cases held that it was reversible error to instruct the jury that 'culpable negligence' could be equated with 'gross negligence' or 'simple negligence'. Thus, this Court has repeatedly demanded that a jury be instructed that 'culpable negligence' means nothing less than

". . . (A) negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and that this shall be so clearly evidenced as to place it beyond every reasonable doubt." Sullivan v. State, 213 Miss. 14 at 24, 56 So.2d 93 at 98 (1952).

See Grinnell v. State, 230 So.2d 555 (Miss.1970); Yelverton v. State, 191 So.2d 393 (Miss.1966); Coleman v, State, 208 Miss. 612, 45 So.2d 240 (1950); Downs v. State, 206 Miss. 831, 41 So.2d 19 (1949); Reynolds v. State, 199 Miss. 409, 24 So.2d 781, 784 (1946); Smith v. State, 197 Miss. 802, 20 So.2d 701 (1945); McKinney v. State, 196 Miss. 826, 18 So.2d 446 (1944); Shows v. State, 175 Miss. 604, 168 So. 862 (1936).

In Yelverton v. State, 191 So.2d 393 (Miss.1966) this Court cited the following rule from Mabry v. State, 248 Miss. 149, 151, 158 So.2d 688, 689 (1963):

'In civil cases involving a charge of negligence, it is well established that instructions for the plaintiff must state the alleged acts of negligence and define them, and may not simply refer to the negligence as charged in the declaration. In criminal cases such a requirement should be even stronger and more necessary. This is the general rule. The jury should be instructed properly as to the nature and elements of the offense charged, and 'the court must define and explain the crime charged, setting forth the essential elements thereof." 191 So.2d at 396.

Therefore, to summarize, 'Instructions to the jury should embody hybothes(e)s constituting the offense or elements of the offense directly and positively . . .' Gates v. State, 160 Miss. 479, 480, 135 So. 189 (1931). To fail to adequately instruct the jury on the definition of terms bearing directly on the nature of the offense would be tantamount to leaving '. . . the jury without a standard of lawfulness or unlawfulness with which to assess the acts of the appellant.' Walsingham v. State, 250 So.2d 857, 859 (Fla.1971).

Taking a different approach to this problem, this Court in Irby v. State, 186 Miss. 161, 185 So. 812 (1939) disapproved an instruction that mentioned the words 'culpable negligence' in a case in which all the evidence indicated that the appellant intentionally inflicted the death-dealing blows upon the deceased. This Court emphasized the intentional character of the fatal blows, when Justice Smith, speaking for the Court, stated:

'The vice of this instruction is its use of the words 'culpable negligence. . . . The evidence discloses no negligence of any sort on the part of the appellant but intentional acts, the quality of which determines his guilt or innocence.' 186 Miss. at 169, 185 So. at 815.

The facts in the instant case make it clear (in fact it is admitted) that the appellant, DeWayne Jolly, intentionally beat Bobby Cox about the head. There is no evidence to indicate that the appellant was negligent in striking the decedent, the appellant's acts were simply intentional in character. Therefore, under the rule espoused in Irby, it was error for the lower court to grant a culpable negligence instruction where there was no evidence that negligence of any kind precipitated the decedent's death.

Even though the trial court cannot give instructions on its own (Section 1530, Mississippi Code 1942 Annotated (1956)) and is under no obligation to modify or correct a defective instruction (Johnson v. State,78 Miss. 627, 29 So. 515 (1900)), the lower court must refuse instructions which do not correctly state the principles of law applicable to the facts in a particular case. Price v. State, 207 Miss. 111, 41 So.2d 37 (1949), Cert. Den. 338 U.S. 844, 70 S.Ct. 92, 94 L.Ed. 516 (1949), Reh. Den. 338 U.S. 888, 94 L.Ed. 545, 70 S.Ct. 187 (1949).

In any event it is obvious that to allow such an instruction under the facts here presented would be to mislead or confuse the jury as to the principles of the case; this instruction is tantamount to a reversible error. See, i.e., Moak v. Black, 230 Miss. 337, 92 So.2d 845 (1957); Graham v. Brummett, 182 Miss. 580, 181 So. 721 (1938).

The appellant next argues that the lower court erred in permitting Justice of the Peace R. K. Owen to testify over appellant's objection as to certain statements made by Bobby Cox at the preliminary hearing shortly before Cox's death. The appellee argues that this testimony was properly admitted under the dying declaration exception to the hearsay rule; however, one of the prime requirements for the admission of dying declarations is that the declarant be conscious of, and solemnly recognize that death is imminent. See Houston v. State, 246 Miss. 77, 84, 149 So.2d 331, 334 (1963); Simmons v. State, 206 Miss. 535, 538, 40 So.2d 289, 291 (1949); Lea v. State, 138 Miss. 761, 770, 103 So. 368, 370 (1925); McCormick, Handbook of the Law of Evidence, § 259, pp. 555-556 (1954).

Nowhere is there the slightest suggestion that Bobby Cox had any sense whatsoever of impending death. We think that it is apparent that a man who is perfectly capable of testifying in court at a preliminary hearing some twenty (20) days prior to his death is not making a dying declaration.

We must then decide the question as to whether or not Judge Owen's testimony could be admitted under an exception to the hearsay rule dealing with testimony taken at a preliminary hearing.

Professor McCormick in this Handbook of the Law of Evidence (1954) sets forth the following criteria for the admission of former testimony:

(1) Former testimony must have been given under oath (§ 231, p. 482);

(2) The party against whom the testimony is now offered (or a party of like interest) must have had reasonable opportunities to cross-examine and confront the witness (§ 231,...

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  • Howell v. State
    • United States
    • Mississippi Supreme Court
    • 23 October 2003
    ...of the accused and are not contradicted, denied, nor objected to by the accused. Manning, 726 So.2d at 1180 (quoting Jolly v. State, 269 So.2d 650, 656 (Miss.1972)). See also Jones v. State, 367 So.2d 458 (Miss.1979) (affirming "adoptive admission" where bystander said, "he's the one that d......
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    • Mississippi Supreme Court
    • 25 June 1998
    ...of which he has manifested his adoption or belief in its truth, ... The common law version of this rule was set out in Jolly v. State, 269 So.2d 650 (Miss. 1972). In that case, this Court [S]tatements made by a third person, which tend to incriminate an accused, are admissible so long as th......
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    • United States
    • Mississippi Supreme Court
    • 22 December 1997
    ...issues; and (5) the witness must be unavailable at the time of the second proceeding. Parker, 514 So.2d at 773 (citing Jolly v. State, 269 So.2d 650, 654 (Miss.1972)). In Parker, because the trial at issue was a retrial of the same charges of the earlier trial, we held the witness' former t......
  • Newell v. State
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    • Mississippi Supreme Court
    • 27 January 1975
    ...and discussion of the statute. Our decisions have expressed greater criticism of the statute and cases in recent years. In Jolly v. State, 269 So.2d 650 (Miss.1972), a case reversed for other reasons, we Even though the trial court cannot give instructions on its own . . . and is under no o......
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