Wells v. State
| Decision Date | 07 March 1932 |
| Docket Number | 29816 |
| Citation | 139 So. 859,162 Miss. 617 |
| Court | Mississippi Supreme Court |
| Parties | WELLS v. STATE |
1 AUTOMOBILES.
In manslaughter prosecution, finding defendant was culpably negligent in operation of automobile held warranted.
2. CRIMINAL LAW. In prosecution for manslaughter arising out of reckless driving of automobile, instruction defining accident, held not reversible error, in view of other instructions.
The instruction, which defined an accident as being "a happening for which no person is responsible," even if inaccurate and erroneous, was not reversible error, in view of further instructions to effect that conviction could not be based on mere negligence, but only on culpable negligence which was repeatedly defined as being such gross or criminal negligence as evinces a wanton, reckless, and utter disregard of safety and lives of others.
3 AUTOMOBILES.
In prosecution for manslaughter arising from reckless operation of automobile, instruction announcing it was negligent to operate automobile in violation of law held not error.
4. CRIMINAL LAW.
Evidence offered on hearing of motion for new trial supported finding there was no prejudicial communication between jurors and outsiders.
5. CRIMINAL LAW.
That jurors slept in adjoining rooms, not directly connected, but opening into hallway, doors of which were guarded by deputies, held not to constitute improper separation.
6. CRIMINAL LAW.
Where court sustained objection to district attorney's argument, and defendant's counsel requested no further action, defendant could not complain of alleged improper argument.
7. CRIMINAL LAW.
In prosecution for manslaughter arising from reckless operation of automobile, district attorney's comment regarding defendant's failure to call companion as witness held not reversible error.
APPEAL from circuit court of Newton county HON. D. M. ANDERSON, Judge.
Bob Wells was convicted of manslaughter, and he appeals. Affirmed.
Affirmed.
S. D. Neill, of Indianola, for appellant.
Special counsel, in his argument to the jury said: This argument was improper, highly prejudicial to appellant, and was unwarranted from any standpoint.
While this argument of employed or special counsel in itself while highly prejudicial and embarrassing to appellant, would not be cause alone for reversal of this case, but when followed up and coupled with the closing argument of the District Attorney, in which this language is used, as shown by special bill of exceptions to-wit: etc.; it would, and did materially prejudice the minds of the jury against appellant.
Story v. State, 133 Miss. 484, 97 So. 807; Blackwell v. State, 137 So. 189; Matthews v. State, 148 Miss. 696.
C. E. Johnson, of Union, for appellant.
One defense relied on by Wells, was that the killing of Miss Sue Adams was accidental, and Wells was entitled to have this defense submitted to the jury on correct and proper instructions, but the State secured an instruction which was given by the court to the jury, undertaking to define an accident in the following words: "The court instructs the jury for the State that an accident is a happening for which no person is responsible." This instruction was, and is erroneous, considering all the instructions, and very prejudicial to defendant, Wells, and might reasonably be said to be the turning point in the jury's decision in view of the record.
Section 1394 of the Code of 1930.
The State relied on Section 1002 of the Mississippi Code, 1930, and on culpable negligence to convict defendant, thus admitting the killing was not intentional or designed by defendant. The statute does not say, negligence is a basis for conviction, but lays down culpable negligence as a basis for conviction, as the authorities uniformly hold it is possible for a man to be guilty of negligence and not of culpable negligence.
1 Words and Phrases of the First Series at page 62.
The definition of an accident given in the instruction is an extreme, unusual and unjustified one, if it can be termed in any sense a definition, and contrary to the law of this case, conflicting with other instructions which stressed culpable negligence, and cutting off a defense allowed by law.
To unduly emphasize certain portions of the evidence is error.
Potera v. City of Brookhaven, 95 Miss. 774, 49 So. 617; 94 Miss. 639, 47 So. 670.
When communications are shown, the State must explain by evidence covering the ground, that no taint or prejudice did exist.
Cartwright v. State, 71 Miss. 82, 14 So. 526; Carter v. State, 78 Miss. 348, 29 So. 148, 34 A. L. R. 1115.
It is immaterial whether improper influence has been exerted or not; the only safety is in keeping the jury free from a liability to such influence.
34 A. L. R. 1123; McQuillan v. State, 8 Smedes & Marshall, 587; Woods v. State, 43 Miss. 364.
W. A. Shipman, Assistant Attorney-General, for the state.
The statement of the prosecuting attorney did not constitute reversible error.
Allen v. State, 148 Miss. 352.
It is not every argument that is improper that will cause a reversal of a case.
Matthews v. State, 148 Miss. 696; Blackwell v. State, 135 So. 192; Brown v. State, 81 Miss. 143; Callas v. State, 151 Miss. 617; Shows v. State, 103 Miss. 640; Denson v. State, 139 Ala. 109; Jacobs v. State, 103 Miss. 622; Pittman v. State, 147 Miss. 593; Cotton v. State, 135 Miss. 792; Schilling v. State, 151 Miss. 361; Holmes v. State, 151 Miss. 702; Sullivan v. State, 155 Miss. 629; Perkins v. State, 160 Miss. 720.
Before this court will reverse a cause, it must be satisfied of two facts, namely: (1) that an error in favor of the appellee was committed in the trial of the cause by the court below, and (2) that this error was prejudicial to the rights of the appellant.
Jones v. State, 104 Miss. 871; Calicoat v. State, 131 Miss. 169.
Regarding any alleged misconduct of the jury, it will suffice to say that the trial court, on the motion for a new trial, heard all of the evidence offered on this proposition, and found as a fact no such improper conduct on the part of the jury. His finding in this regard comes before the appellate court with all the force and effect of the finding of a jury.
Skates v. State, 64 Miss. 644; Cunningham v. State, 94 Miss. 228; Johnson v. State, 106 Miss. 94; White v. State, 142 Miss. 484; Bailey v. State, 147 Miss. 428 Sullivan v. State, 149 Miss. 412; Saunders v. State, 150 Miss. 296; Queen v. State, 152 Miss. 723; Lee v. State, 160 Miss. 618.
Argued orally by S. D. Neill, for appellant, and by W. W. Pierce, for appellee.
The appellant, Bob Wells, was indicted and convicted on a charge of manslaughter and sentenced to the state penitentiary for a term of ten years. The case rests upon a charge and evidence of culpable negligence in the driving of an automobile at an excessive rate of speed in violation of the law of the road.
On Sunday afternoon, the twenty-fifth day of May, 1931, the appellant, accompanied by a young lady, was driving a Dodge coupe on the highway between the towns of Newton and Decatur, Miss. This highway runs north and south, and at a point at or near the south end of a curve the appellant's automobile collided with a Chevrolet coach which was traveling north on this highway. The Chevrolet coach was being driven by one Halpin Adams, who was accompanied by his sister, Miss Sue Adams, and four or five other people; three of the occupants of the Chevrolet were killed, and all the other occupants of the two automobiles were seriously injured. The indictment and conviction of the appellant was for the death of Miss Sue Adams.
According to the testimony on behalf of the state, the automobile which ...
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