Opinion
No. 32337.
October 5, 1936.
1. AUTOMOBILES.
In prosecution for manslaughter by automobile, instruction that, if defendant was exceeding twenty miles per hour and exceeding speed at which reasonable or prudent man would have driven, he was guilty of culpable negligence, and authorizing conviction if death was proximate result of such culpable negligence, held reversible error (Code 1930, secs. 1002, 5569).
2. HOMICIDE.
As respects degree of negligence necessary to constitute manslaughter, criminality cannot be predicated on mere negligence or carelessness, but may be predicated on gross negligence or carelessness constituting such a departure from what would be conduct of ordinarily careful and prudent man under same circumstances as to furnish evidence of indifference to consequences (Code 1930, sec. 1002).
3. CRIMINAL LAW.
In prosecution for manslaughter by automobile, error in instruction for state which was concrete and stated facts warranting conviction for acts constituting mere negligence held not cured by abstract instruction given for defendant defining culpable negligence (Code 1930, sec. 1002).
4. AUTOMOBILES.
In prosecution for manslaughter by automobile, where case presented fact issue as to whether defendant was guilty of gross negligence in driving truck, peremptory instruction for defendant held not warranted (Code 1930, sec. 1002).
APPEAL from the circuit court of Lee county. HON. THOS. H. JOHNSTON, Judge.
J.W.P. Boggan, of Tupelo, for appellant.
The court erred in giving the second instruction for the state.
This instruction should not have been given as it told the jury that acts of simple negligence, if proven beyond all reasonable doubt, made the appellant guilty of culpable negligence. This instruction was not sufficient to constitute culpable negligence under any of the decisions rendered in Mississippi. It also is contrary to the decision of this court in the case of Sims v. State, 115 So. 217, Justice McGOWEN in the second paragraph on page 219, among other things said: "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 no iron clad statement can set forth as applicable to all classes of cases."
Words and Phrases (2 series), page 1174.
There is not anything in this case to show any reckless or careless operation of the truck up to the time of the collision.
In the case of Gregory v. State, 118 So. 906, the court held that the appellant was properly convicted of manslaughter, but in that case he was guilty of the grossest possible form of negligence in omitting to say that all cartridges were not removed from the pistol and in assuring his wife thereafter that they all had been removed and there was no danger in continuing to snap the pistol in her breast as she had been doing, which the same definition of culpable negligence is laid down in the case of Robinson v. State, 121 So. 493, wherein Kella Robinson had pointed a loaded pistol at Ocie Robinson and discharged it by the act of culpable negligence which resulted in death.
The court has held that a reasonable doubt is undefinable.
Brown v. State, 72 Miss. 95; Burt v. State, 72 Miss. 408.
The court in a recent decision in the case of Ed Shows, Jr., v. State, 168 So. 862, rendered by Justice ETHRIDGE, the court sitting in banc, said that the case must be reversed because some of the instructions defined culpable negligence in terms so as to constitute simple negligence.
Criminality cannot be predicated upon mere negligence or carelessness, but it has been said that it may be predicated upon 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 ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference to consequences.
Gregory v. State, 152 Miss. 133, 118 So. 909; Robertson v. State, 153 Miss. 770, 121 So. 492; Sims v. State, 115 So. 270.
If there is sufficient evidence for the case to go to the jury, the case of culpable negligence is one to be determined by the jury under proper instructions to be given by the court.
Webb M. Mize, Assistant Attorney General, for the state.
The lower court properly overruled appellant's motion for peremptory instruction. The state proceeded upon the theory that appellant was guilty of manslaughter because of culpable negligence under section 1002 of the Mississippi Code of 1930. It has been held that it is a question for the jury to determine whether or not defendant has been guilty of culpable negligence.
Shows v. State, 168 So. 862.
Under the facts in this case, we submit that a case of gross, wanton, reckless negligence so as to justify a conviction of manslaughter under section 1002 of Mississippi Code of 1930, was made out, and we respectfully submit that the lower court properly overruled appellant's motion for peremptory instruction.
In our opinion, under the authority of the Shows case, the giving of the second instruction is the most serious ground urged by appellant. Before the court decided the Shows case, supra, we would have been inclined to believe that the granting of this instruction was not error, but since the court's opinion was rendered in that case, we have our doubts as to whether or not this instruction can stand. However, this instruction announces the statutory law regulating the operation of motor vehicles on the streets of municipalities and informs the jury that it was negligence to operate an automobile in violation of these requirements. Surely, there can be no error in announcing the law on this subject and the instruction did not overly emphasize any part of the evidence and we believe that under the case of Wells v. State, 162 Miss. 617, 139 So. 859, that the instruction is not erroneous.
We do not believe that the instruction in the instant case falls without the rule as set up in the Shows case. Furthermore, we believe that two instructions granted at the request of the defendant, when read with the instruction, the giving of which is assigned as error here, clearly and distinctly announce the true rule of law in the case at bar.
All instructions in a case must be considered together and omissions in instructions on one side may be supplied by instructions on the other side, if and when so construed, they embody the governing principles of law. When this can be done, as in the instant case, there is no error.
Williams v. State, 160 Miss. 485, 135 So. 210.
I.G. Bailey and Clyde Turner were jointly indicted for manslaughter. A severance was granted, and I.G. Bailey, the appellant, was tried, convicted, and sentenced to serve a term in the state penitentiary. From said judgment and sentence appellant prosecutes an appeal.
As we have found it necessary to reverse and remand this cause for another trial, we shall not detail the facts at length.
The indictment was drawn, and the prosecution had, under section 1002, Code 1930, commonly called the "culpable negligence manslaughter statute."
The evidence for the state, which may have been believed by the jury, tended to prove that, about nine o'clock at night, Richard Orr, the deceased, was seriously injured in a collision between an automobile driven by him, going west on Jackson street in the city of Tupelo, and a motortruck driven by the appellant, going east on the same street. The deceased was at the wheel of his car and was accompanied by Edward Orr, his brother, and Bill McCullar, all on the same seat, his brother being in the middle and McCullar on the end. Jackson street was the outlet for two highways, one leading to Pontotoc, and the other to Memphis, Tenn.
The evidence of the witnesses for the state warranted the jury in believing that Bailey was driving a heavily loaded truck, without lights, going east in the city of Tupelo, at the rate of thirty-five or forty miles per hour downhill, and driving the truck far to his left of the center of the road, striking the automobile of the deceased at the windshield, in front of the driver, with the bed of the motortruck, and stripping the automobile on the left side, inflicting injuries which resulted in the death of Richard Orr. The collision occurred near posts on the north side of the road west of the bridge. The bridge was twenty feet long with sixteen feet clear space for driving. Witnesses testified that the automobile driven by Orr was twenty feet from the bridge, and that the truck turned over on the north side of the bridge at the east end, after having demolished about half of the railing of the north side of the bridge, which was to the left of the center of the road, so far as the driver of the truck was concerned. It was in evidence that Bailey stated that he was driving the motortruck on the night of the accident.
The testimony offered in behalf of the appellant tended to prove, if believed by the jury, that he was driving at the rate of from ten to fifteen miles an hour on his righthand side of the road, with adequate lights on his truck, and that the automobile driven by Orr, the deceased, struck the side of the truck, that the front left wheel was knocked off, and therefore he lost control of the car, which veered to the north on his left side of the road. There was contradiction as to where the automobile was struck, and as to where it was standing after the collision — in fact, practically all the material evidence in the case was in conflict. Turner, who was riding with the appellant, testified that he, not Bailey, was driving the car at the time of the collision, in which testimony he was corroborated by the appellant; and the evidence for the appellant tended further to show that Orr, the deceased, was driving thirty or thirty-five miles an hour.
The court gave the following instruction:
"The court charges the jury for the state that the motor vehicle law of the state of Mississippi provides that no person shall operate a motor vehicle upon a street or public highway, avenue or alley of any city, town or village in this state at a greater rate of speed than is reasonable and proper, having due regard to the traffic and use of the highway, or so as to endanger the life and limb of any person or the safety of any property, or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate of speed than twenty miles per hour, or elsewhere in any incorporated city, town or village at a greater rate of speed than twenty miles per hour:
"And if you believe from the evidence in this case beyond a reasonable doubt that at the time of the collision in which Richard Orr was seriously and fatally injured and from which injury he died the next day after the injury, that the defendant was operating a truck upon a public street of the city of Tupelo, to-wit Jackson street, near the home of George Hamlin, at a greater rate of speed than twenty miles per hour, and at a rate of speed greater than that at which a reasonable and prudent man would have operated an automobile under the surrounding circumstances existing at the time and place of the collision, then the defendant was guilty of culpable negligence; and if you further believe from the evidence in this case beyond a reasonable doubt that the death of Richard Orr was the proximate result of such culpable negligence, then you should find the defendant guilty as charged."
For the appellant the court granted the following instructions:
"The court instructs the jury for the defendant that before you are authorized to convict the defendant as charged you must be convinced beyond all reasonable doubt and to a moral certainty that the defendant was not only guilty of negligence in the operation of his truck at the time and place charged in the indictment but that he was guilty of culpable or criminal negligence and that such negligence was the cause of the accident in which Richard Orr was killed. If you have in your minds a reasonable doubt as to these facts arising out of the evidence or the want of evidence, then it is your sworn duty to acquit the defendant."
"The court instructs the jury for the defendant that the question in this case is in regard to whether or not at the time and place in question the defendant was guilty of culpable negligence, and that the death of the decedent was proximately caused by such negligence; that culpable negligence means gross or criminal negligence such as evinces a wanton or reckless disregard of the lives or safety of others; and that, in this case, if the state fails to prove, either by evidence, or by the lack of evidence, that the defendant, at the time and place in question was guilty of such gross or criminal negligence as evinces a wanton or reckless disregard of the lives or safety of others, beyond all reasonable doubt, it is your duty to find the defendant not guilty."
1. The instruction given for the state was, in substantial effect, the motor vehicle statute, section 5569, Code 1930, and the jury, in effect, was told that any person who violated that statute would be guilty of manslaughter; in other words, on the state of facts set forth in the instruction, the court advised the jury that a conviction of manslaughter could be had upon simple negligence. It may be observed that the instruction did not include driving, without lights, downhill and on the driver's left-hand side of the road. The rule in this state as to the degree of negligence necessary to constitute manslaughter is accurately stated in the case of Gregory v. State, 152 Miss. 133, 118 So. 906, 909, wherein the court said: "Criminality cannot be predicated upon mere negligence or carelessness, but it has been said that it may be predicated upon `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 ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference to consequences.'" This rule was approved by this court, in banc, in the case of Shows v. State, 168 So. 862.
The case at bar is controlled by the case of Shows v. State. The jury had no guide from the court in considering the instructions set forth in behalf of the appellant save to find that mere negligence would warrant a conviction of manslaughter.
The instruction for the state was concrete and set forth facts which would warrant a conviction constituting mere negligence. The instructions for the appellant, which it is insisted cured the error in the state's instruction, were in the abstract and merely defined culpable negligence under the rule announced in the Gregory and Shows cases, supra. The instruction given for that state did not correctly announce the rule of law upon which the case at bar should have been tried. Nor can it be said that abstract instructions given for the appellant in anyway cured the error, which, in our opinion, is fatal to the conviction and requires a reversal of the case at our hands.
2. The court was not warranted in granting the appellant a peremptory instruction, as the case presents a square issue of fact as to whether or not the appellant was guilty of gross negligence as set forth in the Gregory case, supra, in the operation of the motortruck driven by him on the occasion of this collision, which resulted in the death of the driver of the automobile.
Reversed and remanded.