Sims v. State

Decision Date16 January 1928
Docket Number26337
Citation149 Miss. 171,115 So. 217
CourtMississippi Supreme Court
PartiesSIMS v. STATE. [*]

Division A

1 HOMICIDE. Evidence of "culpable negligence" of bus driver tried for manslaughter held sufficient for jury (Hemingway's Code 1927, section 1023).

Evidence on prosecution, under Hemingway's Code 1927, section 1023 (Code 1906, section 1244), for manslaughter, bus driven by defendant and deceased's automobile having collided at an abrupt curve in a highway, held sufficient for jury on the question of "culpable negligence," which does not require the negligence to be so gross as to raise presumption of malice (citing Words and Phrases "Culpable Negligence").

2 HOMICIDE. Manner of driving shortly before killing held admissible to show reckless state of mind of accused at time of accident.

As tending to shed light on the manner of driving of defendant in manslaughter at the particular curve in a highway where he drove his bus into an automobile, killing deceased, and also as tending to show defendant's reckless and careless state of mind or animus at the time of the homicide, the gist of the offense being a reckless disregard of the rights of others on the highway, evidence that on the trip in question a short time before the accident, he drove at a reckless rate, and out of the road, and so far on the wrong side of the road as to force a passenger to abandon the road was admissible.

3. HOMICIDE. Incompetent evidence on prosecution of bus driver for manslaughter that lady powdered his nose on trip held not ground for reversal.

Admission of incompetent evidence, on prosecution for manslaughter because of defendant running his bus into the automobile of another, killing him, that a young lady sitting beside defendant on the trip amused herself by powdering his nose, held not ground for reversal.

4. HOMICIDE. Instruction declaring defendant guilty of manslaughter, if, while driving on wrong side of highway, he recklessly collided with deceased's car, held correct.

Instruction declaring defendant guilty of manslaughter, if, while on the left-hand side of the center of the highway, he, driving a bus, carelessly, grossly, negligently, and recklessly collided with deceased's car, causing his death, held to correctly state the law.

5. HOMICIDE. Defendant in manslaughter cannot complain of definition, in instruction, of culpable negligence too favorable to him.

Defendant in manslaughter case cannot complain of inclusion, in instruction, of his definition of culpable negligence, more favorable to himself than generally approved.

HON. E. L. BRIEN, Judge.

APPEAL from circuit court of Warren county. HON. E. L. BRIEN, Judge.

Ernest Sims was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

George S. Hamilton, E. B. Todd and H. K. Murray, for appellant.

The indictment is based on section 974 of Hemingway's Code, section 1244 of the Code of 1906. The case however was tried on a theory which was a combination of the manslaughter statute and the motor vehicle laws passed by the legislature in 1916, chapter 116, Laws of 1916, sections 5774-5789 of Hemingway's Code. The violation of the manslaughter statute, however, is a felony, while that of the motor vehicle laws is a misdemeanor only. The theory seems to have been that if the defendant violated any provision of the vehicle laws and death resulted therefrom, that he was guilty of manslaughter.

Considering the case from the standpoint of the manslaughter statute, culpable negligence means criminal negligence, and more than ordinary or civil negligence, and criminal liability for negligence is not measured by the same standard as civil liability. 29 C. J., p. 1154.

In the case of State of Wyoming v. McCombs, 239 P. 526, 41 A. L. R. 717, the court had under consideration the meaning of the words "culpable neglect or criminal carelessness" as used in a manslaughter statute and as applied to a conviction of manslaughter growing out of an automobile collision. The statute provided that: "Whoever unlawfully kills any human being . . . by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty years." The applicable part of that statute is similar to the manslaughter statute under consideration in this case. The court in that case said:

"There are, it is true, cases holding that any unlawful killing as the result of want of ordinary care may constitute manslaughter, upon the theory that unlawful killing of another without malice, involuntarily, but in the commission of any unlawful act (4 Bl. Com.), may be manslaughter, and that want of ordinary care is an unlawful act. Clemens v. State, 176 Wis. 289, 21 A. L. R. 1490, 185 N.W. 209, and cases there cited. But that rule was criticised in the case just mentioned, and when our statute provided that the negligence must be culpable or criminal--terms evidently used synonymously--it would seem that it meant to provide specifically that the unlawful act relied on in manslaughter, must, if it consists of negligence, be more than ordinary negligence, and must be culpable or criminal in its nature. And that seems to be the general rule. . . . (Citing authorities).

"'To make an act carelessly performed resulting in death a criminal one, the carelessness must have been gross, implying an indifference to consequences; and the term "gross negligence" means something more than mere negligence. It means wantonness and disregard of the consequences which may ensue, and indifference to the rights of others that is equivalent to a criminal intent.'

"And carelessness by reason of driving at a speed that is unreasonable or is such as is likely to endanger life or limb is not necessarily criminal carelessness within the meaning of our statute providing for punishment for manslaughter. Thus in State v. Clark, 196 Iowa 1134, 196 N.W. 84, the court said:

"'Instruction 10 is also subject to legal criticism, since under it, if the jury found that the defendant failed "to have the motor vehicle under control or failed to drive said vehicle in a careful and prudent manner or failed to drive it at a rate of speed not endangering the life of other parsons, or in driving the said vehicle at an unlawful rate of speed caused the injury to Edna Morgan which resulted in her death" the jury could not do otherwise than convict. This instruction eliminated the gross negligence and reckless indifference to life which supplies the intent in criminal law in a case of this character.'

"In Wright v. State, 90 Tex. Crim. Rep. 435, 235 S.W. 886, the court said:

"'It is a fairly well-known rule that if one, by an act which is a violation of law, injures another, he is guilty per se of actionable negligence; but it cannot be said as a matter of law or fact that one who drives a vehicle at a greater rate of speed than ten miles per hour, or in a manner not prudent or careful, is ipso facto guilty of gross negligence. Gross negligence is not an expression of frequent use in criminal procedure, and, standing alone, perhaps lacks that clearness of definition and exactness of application which ought, properly, to characterize terms used in defining an act intended to be made penal. In civil cases the courts of this state define it as such negligence as evinces a reckless disregard of human life or bodily injury, or such conscious indifference to the rights of others as amounts to an intentional violation of them. . . .'"

Measured by the standard laid down in the Wyoming case, the record in this case fails to sustain the conviction. Nowhere in the record does it appear that Sims was guilty of such culpable or criminal negligence at the time and place in question as to evince a reckless disregard of human life or bodily injury or such conscious indifference to the rights of others as amounts to an intentional violation of them.

The first instruction given the state is taken from the motor vehicle laws, and abstractly state a correct proposition of law, and would have been appropriate in a civil case; but we submit that it should not have been given in this a criminal case.

The second instruction given the state follows the manslaughter statute to the extent of using the words "culpable negligence," but fails to contain the very important qualification contained in the statute, namely, "without authority of law." And the instruction contains no equivalent of this qualification, such as would be expressed in the words "unlawful" or "unlawfully," "felonious" or "feloniously." These qualifications, we submit, are essential, and the omission of them is fatal.

The third instruction given the state is objectionable for the same reason as the second. It was also confusing by reason of its reference to the left-hand side of the center of the highway, as though that were the test of the guilt or innocence of the defendant on the charge of manslaughter.

Under the testimony in this case, Sims' conviction of manslaughter cannot and should not be sustained.

Rufus Creekmore, Assistant Attorney-General, for the state.

While it is true that a higher degree of negligence is necessary to convict one under our manslaughter statute than would be necessary to sustain a civil action, yet it certainly cannot be such an extreme degree of negligence as counsel urge. It is not necessary that the negligence be so great that criminal intent may be inferred therefrom, but it is only necessary that the negligence be culpable.

The quotation in 29 C. J., which is used by counsel in their brief, states that a higher degree of negligence is necessary under such circumstances as this, but the very sentence which follows the quotation used by counsel reads thus: "The...

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