Sullivan v. State

• Decision Date: 07 January 1952
• Docket Number: No. 38178,38178
• Citation: 213 Miss. 14,56 So.2d 93
• Parties: SULLIVAN v. STATE.
• Court: Mississippi Supreme Court

Page 93

56 So.2d 93

213 Miss. 14

SULLIVAN v. STATE.

No. 38178.

Supreme Court of Mississippi, Division B.

Jan. 7, 1952.

R. C. Russell, Magee, G. B. Grubbs, Mendenhall, Billy C. Little, Magee, L. D. Pittman, Raleigh, and A. W. McRaney, Magee, for appellant.

J. P. Coleman, Atty. Gen., by Joe T. Patterson, Asst. Atty. Gen., for appellee.

ROBERDS, Justice.

Sullivan was convicted of manslaughter in causing the death of Roberta Knox by his culpable negligence. Section 2232, Miss Code 1942.

He requested, but was refused, a peremptory instruction. He says he was entitled to that instruction, but, if not, that the verdict is against the great weight of the evidence and that we should remand the case for trial before another jury. We will consider the two contentions together. They call for a brief review of the pertinent parts of the testimony bearing upon the guilt or innocence of the defendant and the credibility of the witnesses.

It is admitted that the death of Roberta Knox was the result of an automobile collision which occurred around 2:30 to 3 o'clock on Saturday afternoon July 2, 1949, on U. S. Highway 49 about half a mile south of Magee, Mississippi, between a Chevrolet truck being driven north by defendant and a GMC truck going south, and that the GMC truck turned over and finally rested on the west side of the road, pinning Roberta Knox thereunder, horribly mangling her body, and that she died shortly thereafter at a hospital in Magee.

The State used seven witnesses. Rosa Jenkins testified that she was riding on the back of the GMC truck; that it had a cab and a flat body; that there were seven Negroes and the white driver on that truck; that the Negroes had been picking cotton near Shaw, Mississippi, and were being driven to their homes in, or near, Hattiesburg, Mississippi. She said that when the truck on which she was riding reached the crest of a hill and began to descend going south, she saw two cars approaching from the south, that of defendant being behind the other; that defendant '* * * pulled around to his left to try to pass that car, I reckon he thought he could pass, but he didn't, and come on and hit us.' Again, she said '* * * and the truck pulled around that car, or tried to pass it, and couldn't and struck us'. On cross examination she said, 'I saw two cars coming, and this other car tried to pull around the other car, the truck did, it was a truck, I reckon he thought he could pass the car, but he couldn't make it by. So he sidewiped us * * *'; that the GMC driver pulled to the right, got a wheel off the pavement but could not avoid the wreck; the GMC truck turned over and finally rested on the west side of the road, pinning the body of Roberta Knox under it. The GMC truck was not traveling fast.

Estus Nichols knows Sullivan; he was about 300 yards from the accident. He did not see but did hear the collision and immediately went to the scene. He heard the GMC truck when it turned over. He said he found a lot of colored people 'all bunged and bruised up and crippled'. He assisted in removing Roberta Knox from under the truck and helped her and others to the hospital at Magee.

Eddie Earl Knox is a daughter of Roberta Knox. She was riding on the flat part of the body of the GMC truck behind the cab. The white driver and two Negro women were on the seat inside the cab. The other five were on the back of the GMC truck. She said '* * * I saw a car coming up the hill, and he was on our side of the road, and when he hit our truck it turned over'. Again, 'I saw him when he tried to get back in, but he couldn't, and that is when he hit us'.

Nolan Welborn was in a car going south behind the GMC truck. He saw the accident. He was about 100 yards away. He was fixing to cross the highway to the east and had slowed almost to a stop waiting for north-bound cars to pass so he could safely get across. He said, 'Barney (Sullivan, the defendant) was coming on his side of the road, and there was a car ahead of him, and he tried to get around their car, and crossed over the line, and did not have time to get around that car, and tried to get back in on his side, but did not have time before this truck got there, and they met up there'; that defendant was across the yellow warning line. 'He was about half way over the line trying to get back on his side of the road.' Sullivan did not stop. As he passed Welborn he called out, 'Where in the hell are you going?', and directed some name or epithet to Welborn, but Welborn, when asked what it was, replied 'I don't want to say that here--just what he called me.' On cross examination he said Sullivan's truck was about half over the yellow line and that his left front fender hit the GMC truck; that this truck 'slid part of the way before it started turning over'. He went to the scene and then accompanied Hopkins, the patrolman, to find Sullivan.

Bill Lucas testified that Sullivan came to his home that day about noon. Sullivan was then drinking. Witness went with Sullivan in the Chevrolet truck to Mt. Olive. Sullivan had a pint bottle of whiskey; drank all, or a part, of it.

They then went to Mendenhall. Sullivan brought a half pint of whiskey at Bruce's place. Sullivan drank that. They went to the Farm Implement Place; then came back to Bruce's, where Sullivan bought another half pint of whiskey. Bruce's place was about half mile south of the place of the wreck. After leaving Bruce's they drove around some and finally headed north on Highway 49. They met George Sasser and Frank Porter. While talking Sasser said his car would run faster than Sullivan's, but Sullivan said 'it would not'. Sasser started north on highway 49, Sullivan following him, but Sullivan passed Sasser. 'We were going pretty fast, there were a car in the road ahead of us, and he started to go around this car, and he got out to his left over the yellow line and this other truck that had the Negroes on it was coming over the top of the hill, and he started to get back on his side, get back in line, and he did get about half way over the line and they struck'. They had traveled about 150 feet up the yellow line when Sullivan crossed over. Sullivan kept going. Witness, through the rear-view window, saw the GMC truck turn over, and told Sullivan he should stop but Sullivan said 'I just scraped it'. On cross examination he said the GMC truck, after being hit, 'was wobbling back and forth down the highway'. Again he said Sullivan was '* * * over on the truck side of the highway'. The Sullivan truck was going up a hill. He and Sullivan then went to the home of George Sasser, brother-in-law of accused. Sullivan's drunken condition when Hopkins came to arrest him was about the same as when the wreck occurred. On cross examination he admitted that he had given a written statement to the effect he was asleep and did not see the wreck, but he said that was not the truth; that he had made the statement because 'Barney Sullivan said if I knew what was good for me I had better say that I was asleep'. He said he was afraid of Sullivan; also that Van Sullivan, brother of appellant, had also threatened him. He then said his testimony as given on the stand was the truth. He admitted he had been convicted 'for running up behind a car and stopping too quick.'

A. L. Hopkins was a highway patrolman from Mendenhall to Hattiesburg. He got news of this wreck over his radio near three o'clock. He was eight miles away. He immediately went to the scene. He examined the physical conditions there. Various parts of the bodies of the two trucks had been broken and torn off and were scattered on the ground. These, or some of them, he gathered up and they were introduced in evidence. The wreck occurred west of the yellow line. The road was practically straight north and south. The north bound truck was traveling up the bill. The GMC truck had overturned into a ditch to the west of the road. It was about 300 feet south of where the impact occurred. The accident occurred 150 feet north of the south end of the yellow line. Learning that Sullivan was in the wreck he began to search for him and found him at Sasser's. Sullivan was drunk. He arrested and placed him in jail. Witness had pictures made of both trucks.

Dr. V. L. Sanisn was connected with the Magee Hospital. Roberta Knox was brought to the hospital about 3 o'clock. She had 'multiple contusions all over the body, and both legs broken, and one almost severed in two * * *'. She died in about thirty minutes.

Here the State rested.

The first witness for the defense was Van Sullivan, a brother of accused. He and his wife were driving north on this road about the time of the accident. He saw the GMC truck coming down the hill and 'all at once it went to wobbling and run off the pavement and turned over'. That was some 250 yards south of the top of the hill. He drove two to three hundred yards up the hill, stopped and came back to the wreck. Pressed on cross examination he admitted he did not see the wreck. He was asked, 'You are telling the jury that Barney did not hit the truck, are you? A. No, sir. Q. And you don't mean to intimate that? A. I didn't tell them that'. He said there were a number of people at the scene when he got to it. Asked to name some of them he said, 'Seems to me like I saw Clifton Kennedy therefor one'. Said he saw Lucas that day about twelve o'clock and Lucas was drunk. The wife of the witness did not testify.

Clifton Kennedy lived some 700 yards north of the place of the accident. He did not see it. He heard the impact. He went to the scene; helped carry the injury to the hospital. Objection was sustained to his estimating the speed of the GMC truck just after it passed his house. Further reference will be made to this testimony as bearing upon another point raised by defendant.

Randolph Hughes lived south of Magee. He operates a repair shop. He saw the GMC truck pass his house and he followed some 50 yards behind it 'and pulled over...