Nail v. State
| Citation | 242 P. 270,33 Okla.Crim. 100 |
| Decision Date | 17 December 1925 |
| Docket Number | A-5186. |
| Parties | NAIL v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Rehearing Denied Jan. 23, 1926.
Syllabus by the Court.
Where the death of a human being is caused by the culpable negligence of another, under such circumstances that it is not murder nor manslaughter in the first degree, nor excusable or justifiable homicide, it is manslaughter in the second degree.
"Culpable negligence" is the omission to do something which a reasonable and prudent person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case.
The same negligence, as it affects the individual and the state is, respectively, "gross negligence" and "criminal" or "culpable negligence." Between criminal or culpable negligence and negligence merely there is no principle of discrimination. It differs only in degree.
The driving of an automobile upon the high-way, with a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and thereby causing the death of another, establishes the crime of manslaughter in the second degree.
Where a person, by culpable negligence in the operation of an automobile upon the high-way by driving at an excessive speed, without regard for the safety of others, causes the death of another, it is not a defense that after he discovers the other person in danger caused by his own acts, he then did everything in his power to prevent injury to such other person.
Requested instructions held not to state the law correctly and held further, that the charge of the court as a whole is free from prejudicial error.
The admission of evidence tending to prove intoxication of the defendant some hours after the time of an automobile collision held not reversible error under the facts stated.
The verdict of the jury finding the defendant guilty of manslaughter in the second degree held sustained by the evidence.
Appeal from District Court, Okmulgee County; Fred A. Speakman Judge.
Mattie Nail was convicted of manslaughter in the second degree, and appeals. Affirmed.
Eaton, Gilder & Rose, of Okmulgee, for plaintiff in error.
Geo. F. Short, Atty. Gen., and Smith C. Matson, Asst. Atty. Gen., for the State.
For convenience and brevity, the plaintiff in error will be referred to as defendant.
The defendant argues the following contentions as ground for reversal: First. Error of the court in refusing to give requested instructions and in the giving of erroneous instructions. Second. Error in the admission of evidence on the part of the state. Third. The insufficiency of the evidence. These assignments will be considered in the order presented.
This prosecution arose on account of the death of John Falcone, caused by his being struck by an automobile driven by defendant. The facts, briefly stated, are that on the 25th day of December, 1922, the deceased and three companions were driving on the paved highway between the city of Okmulgee and the town of Morris. About 2 1/2 miles east of Okmulgee they stopped to fix a tire, when the defendant, with four companions, drove an automobile against the deceased, killing him almost instantly. The information charges murder. The verdict is for manslaughter in the second degree, and the punishment fixed at 2 years in the state penitentiary. The state produced several witnesses who testified that they saw the collision and gave in detail an account thereof, which evidence tends to sustain its theory of murder.
Summarized, the evidence for the state is, in substance: That the deceased had stopped his car facing the east, with his left wheels about 18 inches on the pavement, the remainder of the car on the ground outside the pavement, and was at the rear, apparently replacing the tire on the carrier. That the defendant drove from the west going east, at a speed of from 35 to 40 miles per hour, zigzagging from one side of the pavement to the other, and when about 50 yards from the car of deceased headed straight for him, struck the deceased and his car, killing the deceased, and knocking his car several feet forward and from the highway into the ditch, and the car driven by defendant was turned at right angle with the road and in the ditch on the opposite side. That defendant did not seem to have control of the car she was driving, and did not perceptibly slacken her speed. That there was no obstruction, other vehicles, or curve in the highway to prevent her seeing the deceased or avoid striking him. There was some evidence that a bottle or bottles smelling of whisky were at the car of defendant immediately after the collision, and that upon her surrender to the officers some 8 hours later that she was intoxicated. There was also some evidence that after the collision the defendant started to flee. She did return to Okmulgee immediately after the collision, and from there went to Sapulpa, but from that point returned to Okmulgee and surrendered herself to the city officials.
The evidence for the state and for the defendant was sharply conflicting. The defendant produced the several witnesses who were in the car with her, who testified that they saw the collision and gave in detail an account tending to sustain her theory that the death of deceased was due to an unavoidable accident.
The evidence on the part of defendant is, in substance: That she was going east at a speed not to exceed 25 miles per hour just before the collision, was in the rear of a Ford car, and did not see the car of deceased which had stopped. That she passed the preceding Ford car to the left, and then for the first time saw the car of deceased, and at the same time another car coming from the opposite direction passed the car of deceased, not leaving her room to pass, and that she then attempted to go between the cars, and in doing so struck the rear left fender and wheel of the car of deceased. That she had applied her brakes and had almost stopped when the collision occurred. That she was without fault, was not intoxicated nor drinking. That the collision was an unavoidable accident.
At the time charged in the information, this state had not enacted any law specifically regulating the operation of motor vehicles upon the highways. The Act approved March 28, 1923 (chapter 16, Session Laws of 1923), having been subsequently enacted. If the defendant had intentionally driven her car agaisnt the deceased, with a premeditated design to injure him, or in so driving had perpetrated an act imminently dangerous to others and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual, she would have been guilty of murder. Section 1733, Comp. Laws 1921. The jury by its verdict found that neither of such conditions existed. Then, in order to find the defendant guilty, it was necessary that the jury find she caused the death of deceased by an act of culpable negligence under the provisions of section 1745, Comp. Laws 1921, as follows:
"Any killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree."
Now, if the act of the defendant which caused the death of John Falcone, as shown by the evidence, was an act of culpable negligence as provided by the above statute, and the issues were fairly submitted, the jury were warranted in returning the verdict they did.
Culpable negligence is not defined by our statute, but this court in the case of Clark v. State, 224 P. 738, defined it as follows:
"'Culpable negligence"' is "the omission to do something which a reasonable, prudent, and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case."
This definition is found in 2 Words and Phrases, First Series, p. 1780; 1 Bouvier's Law Dictionary (Rawle's 3d Ed.) 736; People v. Buddensieck, 103 N.Y. 487, 9 N.E. 44, 57 Am. Rep. 766; State v. Emery, 78 Mo. 77, 47 Am. Rep. 92; State v. Coulter (Mo. Sup.) 204 S.W. 5; Berry on Automobiles (3d Ed.) § 1571.
The foregoing definition, it seems to us, is redundant in the use of the word "honest." Negligence does not depend upon the honesty of the individual in the usually accepted sense, but upon his prudence and care or the lack thereof with which his acts are done in the particular case.
The term is also defined in an earlier case in this court ( Kent v. State, 8 Okl. Cr. 188, 126 P. 1040) as:
"The want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions."
When do the negligent acts of an individual cease to be mere negligence and become culpable or criminal negligence? What is the test by which criminal responsibility becomes a consequence of a negligent act? Beven in his excellent work, "Negligence In Law," vol. 3, p. 7, says:
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State v. Betts
...evidence that defendant was drunk eight or ten hours after the collision was held not to be prejudicially erroneous. Nail v. State, 33 Okla.Crim. 100, 109, 242 P. 270, 273. the court there observed, 'It was a matter proper to be submitted to the jury, and the remoteness in point of time goe......