Smith v. State

• Decision Date: 22 January 1945
• Docket Number: 35694.
• Citation: 20 So.2d 701,197 Miss. 802
• Court: Mississippi Supreme Court
• Parties: SMITH v. STATE.

20 So.2d 701

197 Miss. 802

SMITH v. STATE.

No. 35694.

Supreme Court of Mississippi

January 22, 1945

Henley, Jones & Woodliff, of Hazlehurt, and A A. Cohn, of Brookhaven, for appellant.

Greek L. Rice, Atty. Gen., and R. O. Arrington Asst. Atty. Gen., for appellee.

McGEHEE, Justice.

The appellant, George Smith, was convicted of the crime of manslaughter and sentenced to serve a term of two years in the state penitentiary. The indictment charges that he 'wilfully, unlawfully and feloniously' killed J. L Frizell. The prosecution was conducted under Section 2232 Code of 1942, providing that the killing of a human being through culpable negligence shall be manslaughter; and it was shown that Mr. Frizell met his death as a result of being struck by an automobile driven by the defendant.

Since the case must be reversed for a new trial, we shall not set forth the evidence in greater detail or make a more extended comment on the weight thereof than may be necessary for a proper understanding of the facts to which the instructions for the state were sought to be applied.

It is the state's theory that the defendant while traveling south, a short distance beyond the corporate limits of the City of Brookhaven on U. S. Highway 51, in midafternoon of a June day, and immediately after having passed a large transport truck going in the same direction, at a time when he was about 250 feet ahead of the truck, left the right side of the road, crossed over the center line of the pavement on a long, straight and level stretch of the highway, where no other vehicles were approaching from either direction, then proceeded at a speed of 40 or 45 miles per hour on a gradual turn diagonally across to the left in a steady course for a distance of 60 or 70 feet until he struck Mr. Frizell, who was then standing at his mail box on the shoulder of the road, located two or three feet from the paved portion thereof, knocked him into the roadside ditch, resumed his position on the right side, and then traveled a short distance further, slowed down his automobile almost to a stop, looked back for a moment toward the mail box, and continued on toward his destination.

On the other hand, the defendant contends that while passing the transport truck, which, according to the undisputed evidence was approximately 35 feet long, including an 18 foot trailer, and 15 feet high, the driver of the same failed, after proper signal given him, to allow the defendant enough room on the pavement to pass in safety; and that while watching the truck as he passed it he did not see either Mr. Frizell or the mail box at all, but that having felt the impact when he struck some object on his left with the side of his automobile as he passed the truck and broke his ventilator glass and rear view mirror extending out from the side thereof, he then looked back, saw the mail box standing, and went on his way, not knowing that he had struck and injured any one until he was arrested about two hours later after traveling several miles further on his journey toward, Centreville, Mississippi, where he was then going on business.

The testimony of the several witnesses who saw the defendant at the time of and subsequent to his arrest was in conflict as to whether he was then under the influence of intoxicating liquor, or was merely 'upset' and 'unnerved' by the news that he had caused the death of Mr. Frizell, it being the contention of the defendant in that regard that he had not been drinking, but that after leaving his home at Crystal Springs and before arriving at Brookhaven he had sustained an attack of gall bladder trouble, from which it was shown that he frequently suffered, and that he obtained a room at a local hotel at that place with the intention of summoning a physician, but was able to get sufficient relief from the pain by taking some aspirin tablets to continue on his trip immediately before the unfortunate tragedy occurred.

The truck driver was the only other eyewitness who saw the accident, but he did not claim that the defendant was intoxicated, either at the time he passed his truck or when he was later arrested. On the other hand, his testimony indicated that the defendant was controlling the movement of the automobile as he observed his action. However, a local officer testified that the defendant told him that he had drunk two bottles of beer, which he admitted he had obtained somewhere 'down below' there.

In this situation the state was granted two instructions, the giving of which the appellant complains in particular, reading as follows:

'The Court instructs the jury for the State that while it is true criminality cannot be predicated upon mere negligence or carelessness, yet it may be predicated upon that degree of negligence or carelessness which is denominated as gross, and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference as to the consequences; and if the jury believe from all the evidence in this case beyond a reasonable doubt that the defendant voluntarily and negligently became so intoxicated either by liquor or drugs that his mental and physical condition was so impaired and became so abnormal that he was unable to properly and safely drive and operate the automobile in which he was riding and driving at the time, and that he carelessly and negligently while in that condition drove his car from the west side of the highway across to the east side of the road while driving south on 51 highway at the time and place; and if you further believe from the evidence in this case beyond a reasonable doubt that his actions there constituted that degree of gross negligence or carelessness to the extent that it amounted to culpable negligence as defined in these instructions, and that as a direct and proximate result thereof the defendant George Smith struck, injured and killed the deceased J. L. Frizell, and if you so believe from all the evidence in this case beyond a reasonable doubt, then the defendant George Smith is guilty as charged and the jury should so find.'

'The Court instructs the jury for the State that culpable negligence is that degree of negligence or carelessness which is denominated as gross, and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference to consequences.'

While it was not necessary to either allege or prove that the killing was 'wilfully' done, within the strict meaning and common acceptation of that term, it was, nevertheless, incumbent upon the state in this character of case to prove beyond a reasonable doubt that the act of the defendant was unlawful and felonious; that is to say, that he was guilty of such gross negligence on the occasion complained of as to evince on his part a wanton or reckless disregard for the safety of human life, or such an indifference to the consequences of his act under the surrounding circumstances as to render his conduct tantamount to wilfulness.

It will be noted that the first instruction, after setting forth the state's theory of a premise on which criminality may be predicated, told the jurors that if they believed from the evidence beyond a reasonable doubt that the defendant was in the state of intoxication described in the instruction, and 'that he carelessly and negligently (not wantonly or recklessly in a manner to evince a disregard of the safety of human life, etc.) while in that condition drove his car from the west side of the highway across to the east side of the road * * * and that * * * his actions there constituted that degree of gross negligence or carelessness to the extent that it amounted to culpable negligence as defined in these instructions' (meaning the definition set forth in this instruction and in the second instruction), etc., the defendant 'is guilty as charged and the jury should so find.'

The definition of 'culpable negligence' embodied in these instructions appears to have been taken from this Court's opinions in the cases of Gregory v. State, 152 Miss. 133, 118 So. 906; Shows v. State, 175 Miss. 604, 168 So. 862; Bailey v. State, 176 Miss. 579, 169 So. 765; and Scott v. State, 183 Miss. 788, 185 So. 195. It was first employed in the Gregory case as a quotation without citing the text or decision from which it was taken. If it was intended as a quotation from the note under the leading case of the earlier days, Johnson v. State, 90 Am.St.Rep. 572, wherein Mr. Freeman said, 'Undoubtedly the common-law rule is that criminality may be affirmed of a lawful act carelessly or negligently done. The negligence, however, must be aggravated, culpable, or gross. That is, it must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to evince a disregard for human life or an indifference to consequences. The negligence in such case supplies, in a measure, the direct criminal intent', it omits the principal element of the offense, 'a disregard for human life.' Most assuredly, manslaughter should not be predicated on an indifference to just any consequences, since a motorist may be indifferent as to whether in lawfully passing another vehicle he may run onto the sodded shoulder of the road, damage a tire, strike a chicken or pig, or encounter some other consequence of a trivial nature as compared to a disregard to the safety of human life--a necessary factor in every crime of manslaughter through culpable negligence.

Moreover the statute here involved does not say that one shall be guilty of this crime...