Yelverton v. State, 43999

• Decision Date: 31 October 1966
• Docket Number: No. 43999,43999
• Citation: 191 So.2d 393
• Parties: Samuel YELVERTON, Jr. v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 393

191 So.2d 393

Samuel YELVERTON, Jr. v. STATE of Mississippi.

No. 43999.

Supreme Court of Mississippi.

Oct. 31, 1966.

William E. McKinley, Lee B. Agnew, Jackson, for appellant.

Joe T. Patterson, Atty. Gen., by G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.

INZER, Justice:

Appellant, Samuel Yelverton, Jr., was indicted, tried and convicted in the Circuit Court of Rankin County on the charge of involuntary manslaughter by culpable negligence in the killing of C. L. Steen. He was sentenced to serve a term of five years in the state penitentiary, and from this sentence he appeals to this Court.

Appellant's assignments of errors may be summarized as follows: (1) The trial court erred in failing to sustain appellant's motion for a directed verdict; (2) the court erred in granting certain instructions on behalf of the State; and (3) the court erred in overruling appellant's motion for a new trial.

While the evidence on behalf of the State was sufficient to withstand appellant's motion for a directed verdict, we have serious doubts as to whether that evidence was sufficient to support a jury verdict finding appellant guilty of culpable negligence. Consequently, we feel that another jury should be permitted to pass upon this question. This is especially true since there are other errors in the record, even though these errors, under stronger evidence of guilt, might not be considered grounds for reversal.

Since this case must be retried, we will not detail the evidence. It is sufficient to say that the State's theory was that on December 25, 1964, the deceased, C. L. Steen, was traveling west on the right side of a paved county road in Rankin County at about 4:00 P.M., on a clear, warm day. Appellant, traveling east on the same road, drove his 1964 Chevrolet over the crest of a hill and around a curve on the wrong side of the road. Appellant was allegedly driving at a high rate of speed while in a drunken condition. As a result, he collided with the automobile driven by Steen. Steen was seriously injured in the collision and died in the hospital a few hours thereafter as a result of the injuries he had sustained.

Appellant contends that as he came over the crest of the hill, he was driving his car on the right side of the road at a speed of about 45 to 50 miles per hour; that the road beyond the crest of the hill curved to his right and that when he saw Steen's car, it appeared to be about in the center of the road. He immediately applied his brakes, and as he did so, lost control of his car causing it to skid to the left, striking Steen's car in spite of his efforts to turn it to the right to avoid the collision.

Mrs. Sarah Nell Matthews, a daughter of the deceased, was riding in the car with her father at the time of the accident. She and appellant were the only eyewitnesses who testified to the facts surrounding the accident. Two highway patrolmen and a deputy sheriff investigated the accident. They testified as to what they observed at the scene of the accident, including the skid marks on the pavement and the point of collision. They saw and observed appellant at the scene of the accident, and all testified that in their opinion he was drunk.

Appellant was also injured in the accident, suffering a concussion with lacerations, one of which nearly severed one of his ears. Appellant denied that he was drunk, but admitted having consumed one bottle of beer approximately three hours before the accident.

The instructions granted on behalf of the State are not numbered in the record and will be referred to in this opinion by the page number of the record upon which they are found.

The instruction on page 155B of the record is as follows:

The Court instructs the jury for the State of Mississippi that you are the sole judges of the credibility of the witnesses who testify in this case, and in determining what weight you should give the testimony of any witness, you have the rights to consider their demeanor upon the witness stand; what interest, if any, they have in the results of the trial, if it has been shown by the evidence they have any, and all other facts and circumstances in the evidence in this case.

We are of the opinion that this instruction should not have been given, since the only defense witness who had an interest in the case and testified to the facts and circumstances surrounding the accident, was the appellant himself. In Hall v. State, 250 Miss. 253, 265-266, 165 So.2d 345, 350 (1964), Justice Kyle, writing for the Court, discussed a similar instruction and said:

The above mentioned instruction, in our opinion, should not have been granted under the facts disclosed by the record in this case. The appellant was the only witness who testified for the appellant as to the facts and circumstances of the alleged crime. The testimony of the appellant's other witness was limited to a statement as to the reputation of Mrs. Lillian Whitehead, one of the State's witnesses, for truth and veracity. Instructions similar to the instruction complained of have been repeatedly condemned by this Court in cases where the appellant was the only witness called to testify in his behalf.

In the case of Buckley v. State, 62 Miss. 705, the Court said: 'A defendant has the right to submit his testimony to the jury to be judged by it, uninfluenced by any suggestions of its probable falsity or an authorization to the jury to throw it aside as unworthy of belief because of the strong temptation to the defendant to swear falsely. There is little danger that juries will be unduly influenced by the testimony of defendants in criminal cases.' In Woods v. State, 67 Miss. 575, 7 So. 495, the Court said: 'The case must be reversed, however, because of the error of the court below in granting the one charge asked by the state. The appellant was the only witness offered by the defense, and this first charge is clearly obnoxious to the condemnation pronounced in Buckley v. State, 62 Miss. 705.'

On a retrial of this case this instruction should not be given.

Appellant also urges that the instruction found on page 154 of the record is erroneous. This instruction reads as follows:

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 ordinary careful and prudent person, under the circumstances, as to show indifference to...