Summary
In Williams, the Court held that an indictment under the general culpable negligence manslaughter statute was not defective for alleging that the defendant killed the victim both "willfully and feloniously" and "by culpable negligence."
Summary of this case from Brannan v. StateOpinion
No. 29332.
October 10, 1931.
1. HOMICIDE.
Manslaughter indictment charging defendant willfully and feloniously killed certain person by culpable negligence held not defective because of word "willful" (Code 1930, sections 1002, 1211).
2. HOMICIDE.
Manslaughter indictment charging culpable negligence held not defective because not setting forth conduct constituting culpable negligence (Code 1930, sections 1002, 1211).
3. AUTOMOBILES.
Driving automobile while intoxicated, in violation of statute, is negligence and is culpable, if intoxication is such as to render driver incapable of driving with care essential to safety of occupants and others (Code 1930, section 5579).
4. AUTOMOBILES.
At common law, homicide of which intoxication rendering automobilist incapable of driving with care essential to safety of others is proximate cause, is "manslaughter" (Code 1930, sections 1002, 5579).
5. AUTOMOBILES.
Automobile driver's guilt of manslaughter, where automobile struck telephone pole and occupant was killed, held for jury.
APPEAL from circuit court of Marion county; HON.E.L. BRIEN, Judge.
Thames Thames, of Vicksburg, for appellant.
An indictment charging that one did wilfully and feloniously kill and slay a human being by culpable negligence is defective and void. (a) Killing wilfully and by culpable negligence is contradictory.
Sections 1002, 1211, Code of 1930.
(b) It did not state sufficient facts under the law to state the crime which the indictment seeks to charge.
Bradford v. State, 127 So. 277.
Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case.
Sims v. State, 149 Miss. 186.
The mere commission of the misdemeanors is not controlling, unless the death was the natural or necessary result of their commission, and this must be left to the jury as a fact to be determined by it alone.
Dickson v. State, 45 L.R.A. 219.
An instruction necessarily, when it attempts to set up that the crime was done by culpable negligence, must tell the jury wherein lay the culpable negligence, and not leave it wide open to the minds of the jury to speculate as to what was the culpable negligence in this case.
It is not proper to charge the jury as to facts that happened after the accident in the face of positive proof by the state's own witness as to the actual happening at the time and place of the accident.
An instruction absolutely contradictory of the positive proof offered by the state should not be given.
W.A. Shipman, Assistant Attorney-General, for the state.
The statutes having a bearing upon manslaughter by culpable negligence are sections 1002 and 1211, Code of 1930.
Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do; or, the doing of something which such a man would not do under the circumstances surrounding the particular case.
1 Words and Phrases (2nd Series), p. 1174.
But culpable negligence, like reasonable doubt, is an undefinable phrase. Culpable negligence must be ascertained from the facts of each case, and no iron-clad statement can be set forth as applicable to all classes of cases. In 1 Words and Phrases (2nd Series), page 1174, is given a definition, which will serve as a general guide to a correct conclusion as to what constitutes culpable negligence.
Sims v. State, 149 Miss. 171.
An indictment merely charging that the defendant "did feloniously kill and slay," the deceased, is sufficient under section 1211 of the Code of 1930, and the addition of the words "by culpable negligence" in no wise affected the validity of the indictment.
Bradford v. State, 158 Miss. 210, 127 So. 277.
The omission of the word "unlawful" or "unlawfully" from the indictment herein does not in the slightest affect the validity and sufficiency thereof. The word "feloniously" carries with it the idea that the killing is unlawful.
Winston v. State, 127 Miss. 477.
Where the accused committed an accidental homicide while engaged in the commission of a misdemeanor, which misdemeanor was merely malum prohibitum and not in malum in se, he is not guilty of manslaughter, unless the death of the deceased was the natural and necessary consequence of his acts, and this is a question for the jury.
Dixon v. State, 104 Miss. 410, 45 L.R.A. 219; Gregory v. State, 152 Miss. 133; Sec. 1244, Code of 1906, Sec. 1002, Code of 1930; Robertson v. State, 153 Miss. 770.
This is an appeal from a conviction of manslaughter. The indictment alleges that the appellant did ". . . willfully and feloniously kill and slay one John Turner, a human being, by culpable negligence." Section 1002, Code 1930, provides that "every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this chapter, shall be manslaughter." Section 1211, Code 1930, provides that "it shall be sufficient, in an indictment for manslaughter, to charge that the defendant did feloniously kill and slay the deceased."
A demurrer to the indictment was overruled.
The indictment is said to be defective, for two reasons: First, because of the use of the word "wilful;" and, second, in failing to set forth the conduct constituting the alleged culpable negligence of the appellant. It is said by counsel for the appellant that there is no such thing as "willful negligence;" "willful" being the equivalent of "intentional." If the word "willful" cannot be here treated as mere surplusage — as we are inclined to think it can — the only effect it can here have is to charge the appellant with intentionally doing the thing which constitutes his culpable negligence, but not with the intention of inflicting the injury resulting therefrom. Westre v. Chicago, M. St. Paul Ry. Co. (C.C.A.) 2 F.2d 227; Ousley v. State, 154 Miss. 451, 122 So. 731.
Again, it is said that, while it was unnecessary for the indictment to have alleged that the killing resulted from the culpable negligence of the appellant, having so alleged, the conduct constituting that negligence should have been set forth, in support of which Bradford v. State, 158 Miss. 210, 127 So. 277, is cited. Where the acts constituting alleged culpable negligence are set forth in an indictment for manslaughter, the acts so alleged must be of such character as to warrant an inference of culpable negligence therefrom; but here no such acts are alleged, and the only effect which the allegation of culpable negligence could here have would be to limit the state to proof that the homicide was the result of culpable negligence.
No error was committed in overruling the demurrer.
To drive an automobile on a public street or highway while intoxicated is prohibited by section 5579, Code 1930, and is therefore negligence in any case; is culpable if the intoxication of the driver is such as to render him incapable of driving the automobile with the care essential to the safety of persons then in the automobile and of others on or near the street or highway; and at common law (People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902, Huddy, Automobile Law, 9-10, p. 90) and under section 1002, Code 1930, a homicide of which it is the direct and proximate cause is manslaughter.
The evidence discloses that an automobile driven by the appellant, and in which were the deceased, Turner, and another, left the public street along which it was being driven, crossed a small ditch, and struck a telephone pole with such violence that the automobile was wrecked, Turner was killed, and the appellant and the other occupant thereof were slightly injured. The appellant testified that he was driving the automobile at about twenty miles an hour, and that it struck loose gravel, which caused it to skid, leave the street, and strike the telephone pole. Witnesses who examined the street at the place of, and immediately after, the accident, testified that there was no loose gravel there, and no evidence of the automobile having skidded. According to the evidence for the state, which the jury were well warranted in believing, the appellant was intoxicated to the extent of culpability, as hereinbefore defined, and the homicide was caused, not by the skidding of the automobile while it was being carefully driven, but was the direct and proximate result of the appellant's intoxicated condition. The court below committed no error in refusing the appellant's request for a directed verdict.
The instructions granted the state were in accord with the foregoing views, and therefore are unexceptionable.
Affirmed.