Opinion
No. 31692.
June 3, 1935.
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).
APPEAL from the circuit court of Forrest county.
HON.W.J. PACK, Judge.
A.C. Wilson was convicted of manslaughter, and he appeals. 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.
Mobile street, in the city of Hattiesburg, is crossed by the Mississippi Central Railroad tracks in a thickly settled and well built-up section of the city on both sides of the tracks along said street. Immediately alongside the railroad tracks and across said street is a path which pedestrians were and are accustomed to use. About five forty-five p.m. on Saturday, December 15, 1934, Mr. Russie Holmes, an employee of a near-by industrial plant, working at night, was on his way to his work, and was using this path alongside the railroad track. When he reached Mobile street and a point about three or four steps into the street and along the path aforesaid, he was struck by an automobile driven by the appellant, and was so severely injured that he died therefrom.
The evidence shows that appellant was driving at the rate of from thirty to thirty-five miles per hour. He drove across the railroad track and onto the path which the deceased was pursuing without slowing down or sounding any alarm. When about twenty feet from the pedestrian, appellant's companion, sitting on the front seat with him, shouted to him that there was a man in front, whereupon appellant swerved to the left, but did not slacken his speed, and the pedestrian was hit and thrown some twenty or twenty-five feet across to the other side of the street. Appellant admitted that if he had been running only twenty miles an hour he could have stopped within ten feet; and, as already mentioned, his companion shouted to him when twenty feet away that there was a man ahead. Appellant was convicted of manslaughter, and appeals.
Section 5569, Code 1930, provides that no person shall operate a motor vehicle in any public highway or street, where the territory contiguous thereto is closely built up, at a greater rate of speed than twenty miles an hour. This is a statute enacted in the interest of the public safety and for the benefit of every member of the public. It is a legislative determination and declaration, the voice of the state itself, to the effect that at a higher rate of speed the driver cannot, according to common experience, have his motor vehicle under such control as to prevent injuries to persons who are likely to be upon the highway or street in such closely built-up territory, especially at crossings, or at places commonly used as such. It is at such places a legal measure of due care, prescribed by the state, in respect to speed. When the motorist exceeds the speed fixed by law, there is a want of due care as measured by the legal standard; and, when the excess is so much above the legal rate of speed as to leave no doubt that the excess was distinctly intentional and willful, it is, of course, culpable in its want of due care, so far as concerns any injury which proximately results therefrom; and this means that, where a death occurs as a proximate cause of the willfully excessive speed, and which probably would not have occurred had the lawful rate of speed been observed, the statute, section 1002, Code 1930, comes into application; so that the homicide resulting from the culpable negligence is manslaughter.
And it is no answer to this inevitable conclusion that the statute is habitually violated in all parts of the state; and is even less of an answer that many motorists operate under the mistaken and selfish assumption that pedestrians have no rights in the highways or in the streets even at a crossing — the habitual violation or disregard of law and of the rights of others furnish no excuse to courts to refuse to enforce the law or to depart therefrom in a particular case. It is to be regretted that the statute in regard to speed in closely built-up areas is so poorly enforced; it is to be regretted that case after case has happened where there was no real defense against prosecution and yet the offender has been allowed to go unprosecuted; it is to be regretted that police watchfulness is generally confined to the main business area of cities and towns and is so nearly absent from those thickly settled residential areas where every day hundreds of motor vehicles habitually make from thirty-five to seventy miles per hour with persistent indifference to the rights of others at crossings, even with indifference to the safety of little children who are endeavoring to make their way to school. All this is to be regretted, not only because of the danger in this habitual violation of right, but because, also, this failure of law enforcement tends to induce in the minds of the thoughtless and selfish, and who are therefore the more dangerous, the belief that there is no law against their conduct.
We feel, therefore, the natural hesitancy to enforce the written law upon this defendant when for the same offense and for no greater offense so many others have been permitted to go unwhipped of the law; but our duty is plain, as we see it, and we must allow the conviction and sentence to stand. That the appellant was willfully and intentionally violating the speed law in gross excess of its limits is established even by his own admission; that this violation was a proximate or concurrently proximate cause of the death, and that the death could and would probably have been averted had the motorcar been running within the rate of speed allowed by the law, is amply sustained by the evidence. We have examined the other assignments, and find nothing therein which would justify a reversal under this record.
Affirmed.