Wilson v. State
| Decision Date | 18 September 1940 |
| Docket Number | A-9681. |
| Citation | 105 P.2d 789,70 Okla.Crim. 262 |
| Parties | WILSON v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
1. Manslaughter in the second degree is defined by Section 2228 Oklahoma Statutes 1931, 21 Okl.St.Ann., § 716, as follows "Every killing of one human being by the act procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree."
2. This court has often defined culpable negligence, as used in this statute, as the omission to do something which a reasonable and prudent person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case.
3. The driving of an automobile upon the highway, with a degree of carelessness amounting to a culpable disregard of the rights and safety of others, and thereby causing the death of another, establishes the crime of manslaughter in the second degree.
4. There must be negligence rising to the degree of criminal or culpable negligence. The culpability of a defendant is a question of fact for the jury, and the test is: Do the acts charged as criminal show a degree of carelessness amounting to a culpable disregard of the rights and safety of others and did said acts cause the death of deceased? If so, it establishes a case of criminal negligence.
5. To convict one of manslaughter in the second degree it is not necessary to show an intent to kill, but it is sufficient to show an unlawful killing.
Appeal from District Court, Ottawa County; Ad V. Coppedge, Judge.
Delliah Wilson was convicted of the offense of manslaughter in the second degree, and she appeals.
Affirmed.
M. R. Tidwell, Jr., of Miami, for plaintiff in error.
Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., and N.C. Barry, Co. Atty., of Miami, for defendant in error.
The defendant, Delliah Wilson, was charged by indictment of a grand jury in Ottawa County with the crime of manslaughter; was tried, convicted of manslaughter in the second degree, and sentenced to serve a term of six months in the county jail, and pay a fine of $500, and has appealed.
It is contended by defendant for reversal of this case:
In considering the first assignment of error it is necessary to review the evidence as shown by the record.
This indictment grew out of an automobile collision on the night of June 5, 1938. The collision occurred on U.S. Highway No. 66, in Ottawa County. Alfred Daniels, his wife, mother, and baby boy, Raymond Daniels, about two years of age, had left their home late in the evening of June 5, 1938, for the purpose of visiting his brother, who lived at North Center. About 10:00 o'clock that evening they started home. They drove south out of Pitcher to Connell Avenue, where it intersected U.S. Highway No. 66. At this point he stopped his car for the purpose of permitting a car to pass, and then turned west on U.S. Highway No. 66. He had driven about a quarter of a mile west on said highway, when his car was struck from the rear by an automobile driven by defendant. The right front wheel of defendant's car struck the left rear wheel of his car. His car caught fire and completely burned. His son, Raymond Daniels, approximately two years of age, was badly burned. From the effects of the burns he died at the hospital the next morning, as testified to by the physician who attended him. Mr. Daniels, his wife, and his mother were all injured at the time of the collision. Mr. Daniels further testified that he was driving on the right hand side of the road, near the north side of the pavement. He was driving a 1932 Chevrolet two-door sedan, and was going about thirty or thirty-five miles an hour at the time his car was struck. Another car had just passed him going east at the time he was struck. He was knocked unconscious, and did not remember anything after the car was struck. He had examined the rear of his car at the time he left his brother's place, and the lights were burning.
His wife, Elma Daniels, corroborated his evidence.
Two other witnesses testified for the state; Coleman Parker and Claud Corbett.
Coleman Parker testified that he drove a beer truck out of Miami. On the night of June 5, 1938, he had been to Pitcher, Oklahoma, and in coming back to Miami he followed the Alford Daniels car. That he stopped his car at U.S. Highway No. 66, to let the car of defendant pass. He testified that defendant's car was going at a pretty good speed; in his best judgment forty miles an hour, or more. That approximately a quarter of a mile from where he turned on U.S. Highway No. 66, defendant's car ran into the Daniels car, which caught fire. He was behind the Wilson car at the time of the collision. That he drove to the scene, and with Mr. Corbett assisted in removing the injured from the car. He also testified that while he was following the Daniels car, the tail light was burning.
The witness, Claud Corbett, testified that he lived at Miami, and owned a garage. That on the night of the 5th of June, 1938, he was driving east on Highway No. 66, going to Joplin, Missouri. That his wife was with him. That he passed the Daniels car and saw the car of defendant. It was going west and he was going east. That he was afraid defendant's car would not have room to pass the Daniels car, and he pulled over as far as he could to the side of the road. That defendant's car was travelling at a pretty good rate of speed; to the best of his judgment from thirty to fifty miles per hour. That just as he passed the cars he looked back through his window and saw defendant's car run into the back of the Daniels automobile, and the Daniels car burst into flames. He immediately turned around and drove back to the scene and helped to assist the injured. He first saw Mrs. Daniels, and then saw the injured baby on the floorboard of the car, with its clothing on fire. He picked the baby up, put out the fire, and handed it to his wife. He then assisted the others. He saw the defendant, Delliah Wilson lying on the pavement. He and Coleman Parker attempted to load her in Parker's truck. He had a conversation with her at that time. He testified:
He also testified that the Wilson car crossed the center line four or five times before it got to him.
Dr. W. G. Chestnut testified as to the injuries caused by the burns upon the body of the child, Raymond Daniels, and of its death on the following morning by reason of the injuries received.
Manslaughter in the second degree is defined by Section 2228, Oklahoma Statutes, 21 Okl.St.Ann., § 716, as follows: "Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree." In construing this statute this court has defined culpable negligence as the omission to do something which a reasonable and prudent person would do, or the doing of something which such a person would not do under the circumstances surrounding the particular case. Nail v. State, 33 Okl.Cr. 100, 242 P. 270; Sweet v. State, Okl.Cr.App., 95 P.2d 242. In the case of Nail v. State, supra, this court has fully discussed the question of culpable negligence and has drawn the distinction between that term and the general term negligence, saying [33 Okl.Cr. 100, 242 P. 271]:
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