Wilson v. State

• Decision Date: 03 June 1935
• Docket Number: 31692
• Citation: 161 So. 744,173 Miss. 372
• Court: Mississippi Supreme Court
• Parties: WILSON v. STATE

161 So. 744

173 Miss. 372

WILSON v. STATE

No. 31692

Supreme Court of Mississippi

June 3, 1935

Division B

1 AUTOMOBILES.

Motorist exceeding speed fixed by law fails to exercise legal measure of due care prescribed by state, and speed so much above legal rate as to leave no doubt that excess was intentional and willful constitutes culpable want of due care as respects injuries proximately resulting therefrom, so that homicide proximately caused by such willful excessive speed is manslaughter (Code 1930, sections 1002, 5569).

2 AUTOMOBILES.

Motorists' habitual violation of statute, limiting speed in closely built-up territory to twenty miles an hour, and disregard of pedestrians' rights by many motorists, furnish no excuse for courts to refuse to enforce law or depart therefrom in case wherein facts justify conviction of motorist for manslaughter in causing pedestrian's death by willful violation of speed law (Code 1930, sections 1002, 5569).

3 AUTOMOBILES.

Evidence of motorist's willful and intentional operation of automobile at speed grossly exceeding statutory limit across pedestrians' path alongside railroad track at street crossing and death of pedestrian as proximate or concurrently proximate result of such law violation held to sustain conviction of manslaughter (Code 1930, sections 1002, 5569).

HON. W. J. PACK, Judge.

APPEAL from the circuit court of Forrest county, HON. W. J. PACK, Judge.

A. C. Wilson was convicted of manslaughter, and he appeals. Affirmed.

Affirmed.

Earle L. Wingo and D. W. Holmes, both of Hattiesburg, for appellant.

It is unquestionably true that the negligence must be of a higher degree in order to convict of manslaughter than would be required to hold a party liable in a civil action. But "culpable negligence," like reasonable doubt, is an undefinable phrase and we have read many attempted definitions thereof. "Culpable negligence" must be ascertained from the facts of each case, and the most ironclad statement can be set forth as applicable to all classes of cases.

Sims v. State, 115 So. 217.

We take the position that the instruction complained of was misleading and greatly influenced the jury to look lightly upon the elements essential to establish "culpable negligence."

The testimony was not sufficient upon which to predicate a conviction of manslaughter.

The appellant, through his counsel, sought to have all of the testimony relating to the crime of the possession of whisky taken from the jury and for the court to instruct the jury to disregard the same because of its incompetency.

It is a well settled principle of law that the state can never show, over the objection of the accused, that the accused was guilty of a distinct and separate crime from that on which he is being tried; the only exception to this rule being that the other crime can be shown only when there is proof that the commission of the two crimes are relating in some manner.

In the case at bar the appellant was charged with manslaughter by reason of operating an automobile at an excessive rate of speed. The fact that he may or may not have had whisky in his car at the time was immaterial, incompetent, prejudicial and inadmissible.

Collier v. State, 64 So. 373, 106 Miss. 613; Raines v. State, 33 So. 19, 81 Miss. 489.

On the final assignment of error we submit that the state failed to take out a case of manslaughter against the appellant. The proof wholly failed to establish criminal intent or "culpable negligence" on the part of the driver of the car who was the appellant. A reading of the entire record will reveal nothing more than that the appellant, while going approximately thirty miles an hour, accidently and unexpectedly ran into the deceased Holmes, and that at no time was he guilty of "culpable negligence."

W. D. Conn, Jr., Assistant Attorney-General, for the state.

Appellant complains, first, of the definition of the term "culpable negligence," which appears in an instruction. This instruction does not indicate whether it was given at the request of the state of the defendant. However, assuming that it was given at the request of the state, we submit that it is a proper definition of the term "culpable negligence" as it is used in connection with our manslaughter statutes. This definition has been approved in Robertson v. State, 153 Miss. 770, 121 So. 492; Sims v. State, 149 Miss. 171, 115 So. 217; Gregory v. State, 152 Miss. 133, 118 So. 906.

It is contended here that this is proof of a separate and independent crime and that, as such, under the general rule, was incompetent. The state submits that whether or not liquor was in the automobile, or whether or not the driver of the automobile was intoxicated or had been drinking, is a very material matter to be considered in determining whether or not there was culpable negligence involved in this collision.

As to the sufficiency of the evidence to make out a case of manslaughter against the defendant, the state submits that the evidence was sufficient to make it a jury question as to whether or not there was, in fact, culpable negligence involved. The state proceeded upon the theory that this was a thickly built up community and that the speed at which he, himself, admitted the car was going was a violation of the law.

Bradford v. State, 158 Miss. 210, 127 So. 277.

OPINION

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