March 13, 1933. Suggestion of Error Overruled April 10, 1933.
1. CRIMINAL LAW.
In manslaughter prosecution, statement of deceased's husband, testifying on how far deceased's automobile was knocked by defendant's automobile, that he could go within foot of where dead wife lay held not prejudicial.
In manslaughter prosecution, evidence car was going at certain speed mile from where accident occurred and that judging from sound speed was not lessened, held admissible.
In manslaughter prosecution, whether deceased motorist gave signal for turn across road and whether defendant could have seen signal by reasonable care, held for jury.
In manslaughter prosecution, deceased motorist's negligence in projecting her car across road before being struck by defendant's automobile held for jury.
5. CRIMINAL LAW. In manslaughter prosecution, prosecutor's argument regarding deceased's being sent back dead to husband and children, who were made orphans, held not abuse of argument.
Facts disclosed that district attorney in argument stated, "This poor woman was cast into eternity without a moment's warning, and was sent back dead to her husband and the children God had given her, who were made orphans as a result of the reckless driving of this speed demon" and that in response to defendant's objection, court instructed jury to try case on law and evidence, and that if counsel went beyond this to pay no attention to it.
Test of whether fact inquired about on cross-examination is "collateral," is whether cross-examining party be entitled to prove it as part of his case.
7. WITNESSES. In manslaughter prosecution, where witness fixed speed of defendant's automobile at forty miles an hour, and denied on cross-examination stating on certain occasion that car was going as fast as he had ever seen one travel, permitting state to prove he had made such statement held not error.
Permitting state on cross-examination to ask defendant's witness whether he had not stated in presence of certain persons that defendant's automobile was going about as fast as he had ever seen one travel, and to prove on rebuttal that defendant had made such statement, was not error, since it would have been competent for state to introduce defendant's witness as a witness to prove fact which state's witnesses testified defendant's witness had stated to them, and therefore inquiry was not in reference to a collateral and immaterial matter.
APPEAL from Circuit Court of Calhoun County.
McKeigney Latham, of Eupora, W.J. Evans, of Calhoun City, and W.I. Stone, of Coffeeville, for appellant.
The state's case is made up entirely on speed, when according to all the authorities that even granting, which we do not, an excessive speed, it is said in many cases and in all the authorities that excessive speed does not constitute criminality when the accident was caused by the projecting of a car into the wrong part of the highway without warning.
O'Malley v. Eagen, 77 A.L.R. 582; 22 R.C.L. 113; 12 A.L.R. 458; 601 of 77 A.L.R.; Bloom v. Bailey, 57 A.L.R. 585; Whalen v. Dunbar, 115 A. 718; Bragdon v. Kellog, 105 A. 475, 6 A.L.R. 669; Burlee v. Stevens, 193 P. 684-686; Terrell v. Solsky, 123 A. 495; Post v. Richardson, 116 A. 531; Wright v. Philadelphia, etc. R.C. Co., 104 A. 859; 42 C.J., p. 997, sec. 728.
The court erred in overruling the appellant's objection to the proposed testimony of Perry Peden, the widower of the deceased, to the effect that he could go to the road and go within one foot of where his dead wife laid; this was projected into this record during the cross-examination of this witness by appellant's counsel. It was not in response to anything that had been asked him and was just a gratuitous fling at the defendant in an effort to arouse feeling against the appellant with the jury, an effort of a witness to make a smart remark to opposing counsel, and the record will show that it was objected to, and an effort was made to have it excluded and the jury instructed not to consider it; and we think that the overruling of these objections was a serious error and very prejudicial to the appellant.
The court erred in admitting over appellant's objection the testimony of O.O. Fondren as to the speed being made by appellant over a mile before the appellant reached the scene of the accident. We think that it will be seen by an examination of this man's testimony and its direct contradiction by witnesses brought on by the defense, that it was unworthy of belief and that no man can assume to do miracles in telling the speed of a car more than a mile away by the sound.
The court erred in refusing to instruct the jury that there was no signal given by the deceased of her intention to cross the road.
Let it be understood that the testimony had shown beyond the possibility of a doubt that the car was projected suddenly and unexpectedly into the path of appellant's on-coming car, and for the court to refuse to allow us to show that this act of gross negligence on the part of Mrs. Peden was negligence put as under a burden and handicap that is not justified by the law.
Mr. Belk, the distinguished district attorney, in his closing argument said, "This speed demon coming down the road hit this poor woman's car and crushed her making her little babies orphans."
The court instead of rebuking counsel and instructing the jury not to regard it said only "Gentlemen of the jury, you are here to try this case on the law and the evidence. Mr. Stone, make up your bill of exceptions." This was gross error and very prejudicial to appellant.
Counsel says that Mrs. Peden "does not seem to have been violating any of the rules of the road and she had a perfect right to turn across the road and enter her driveway;" we take issue with this statement. With all possible kindness and sympathy for Mrs. Peden and her family we say that she did not have this right and that it was in failing to exercise proper care on her part concerning this very proposition that she met her untimely death; it would have been different had the appellant known that Mrs. Peden was in the car and lived west of the road and intended to turn, and had he known any of these things it is inconceivable that the accident would have occurred; but being a stranger and not knowing any of these things, and coming down the road on the proper side, suddenly and without warning Mrs. Peden's car blocked the highway and rendered it impossible for the appellant to avert the crash.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
The testimony of the state witnesses fixes the speed of the appellant's automobile at from a minimum of forty, forty-five and fifty up to seventy miles per hour.
No person shall operate a motor vehicle on a public highway 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 or limb of any person, or the safety of any property.
Section 5569 of the Mississippi Code of 1930.
In a former appeal of this case, 127 So. 277, the court held that the testimony for the state, to the effect that the automobile was traveling at a speed of from sixty to seventy miles per hour and was swerving back and forth across the roadway, as well as all the evidence as to the surrounding facts and circumstances were sufficient to carry the case to the jury on the question of whether or not appellant was guilty of culpable negligence.
On the showing made by the state, it was proper to overrule the motion to exclude and allow the case to go to the jury on the question of whether or not the killing in this case resulted from culpable negligence of the appellant.
The district attorney has great latitude in his argument to the jury. He may call witnesses by name and draw such inferences from the testimony as he thinks are proper. He is not subject to the rules with reference to comments on evidence, as is the trial judge. He is free to cover the whole range of testimony, but he should not go outside of the record in his argument.
Appellant was indicted and convicted in the circuit court of Calhoun county of the crime of manslaughter and sentenced to the penitentiary for a term of five years. From that judgment he prosecutes this appeal.
This is the second appearance of this case in this court. There was a former trial and conviction, and on appeal to this court there was a reversal of the judgment and a remand of the case. The case as it stood on the former appeal is reported in 158 Miss. 210, 127 So. 277. With the following exception the case now before the court, in all substantial respects, is the same as it was when it was here before: The instruction given the state on the first trial which was held to be error and for the giving of which the judgment was reversed was left out of the case on the last trial.
The husband of the deceased testified as to how far the Ford car in which his wife was riding was knocked as the result of being struck by appellant's car. The evidence showed that she was found near her car. The witness, in testifying, stated that he could go within one foot of where his dead wife lay. Appellant argues that this statement had no bearing on the issue and was calculated to prejudice his rights before the jury. We do not think there is any merit in this contention.
Over appellant's objection the court admitted the testimony of the witness Fondren as to the speed of appellant's car at a point something like a mile north of where his car ran into the one occupied by the deceased. This witness testified that he was on the porch of his home when appellant passed; that at the time he was going from fifty to fifty-five miles an hour; that he had the cutout to his car open and it sounded like an aeroplane; that he heard the crash resulting from the collision; that from the time he first heard the cut-out, the exhaust of appellant's car never slowed down until the collision. To support his contention appellant refers to the case of Ronning v. State, 184 Wis. 651, 200 N.W. 394, 396. In that case the court held that in a prosecution for manslaughter based on the negligent operation of an automobile testimony as to the speed of the defendant's car a mile or more from the place of the collision — that it was going "real fast" — was not admissible. The court said, among other things, in that case: "The opinion of a witness who testifies as to a car going `fast' or `real fast,' or `slow' or `real slow,' can only be persuasive when a comparison is made with certain other vehicles whose speed is known, or where certain facts and circumstances are shown, from which an approximate estimate can be made as to what a witness really means by such an expression."
The question here is a very different one from that passed on in the Wisconsin case. Here the witness testified that the car was making from fifty to fifty-five miles an hour and judging from the sound of the exhaust the speed was not lessened before the collision occurred. We think the evidence of this witness had probative value and was properly admitted by the court.
The court refused appellant an instruction to the effect that no signal was given by the deceased to show her intention of turning across the road to the west in order to enter the premises where she lived. Miss Bryant and Mrs. Murff both testified that the deceased threw out her left hand as she turned across the road to the west. As to whether appellant did see the signal or could have seen it by reasonable care under all the conditions and circumstances was a question for the jury. There was no error therefore in refusing the instruction.
The court refused appellant an instruction to the effect that the deceased was negligent in projecting her car across the road in the manner shown by the evidence. This was a question for the jury, therefore the instruction was properly refused.
Appellant argues that the judgment ought to be reversed because of abuse of argument by the district attorney. This is what occurred: The district attorney used this language: "Gentlemen of the jury, this poor woman was cast into eternity without a moment's warning and was sent back dead to her loving husband and the children God had given her, who were made orphans as a result of the reckless driving of this speed demon." In response to appellant's objection to the language, the court said: "Gentlemen of the jury, you are to try this case on the law and the evidence, and if counsel go beyond this you will not pay any attention to it." Thereupon appellant moved the court to enter a mistrial, which motion was overruled. This was not an abuse of argument by the district attorney. Blackwell v. State, 161 Miss. 487, 135 So. 192, 137 So. 189; Callas v. State, 151 Miss. 617, 118 So. 447.
The witness Gamblin testified on behalf of appellant. He fixed the speed of appellant's car at something like forty miles an hour. On cross-examination by the state, the witness denied stating in the presence of Ollie Wilson and Jess Sheffield that appellant's car was going about as fast as he had ever seen one travel. On rebuttal the state introduced Wilson and Sheffield who testified over appellant's objection that at the time and place referred to Gamblin stated that appellant's car was going about as fast as he had ever seen one driven. Appellant argues that under the authority of Cofer v. State, 158 Miss. 493, 130 So. 511, 512, this evidence was not admissible. The court held in that case, following a long line of decisions referred to in the opinion, that a witness could not be contradicted or impeached on an immaterial or collateral matter, and that the test of whether or not a fact inquired about on cross-examination is collateral is this: "Would the cross-examining party be entitled to prove it, as a part of his case, tending to establish his plea?" Certainly it would have been competent for the state to introduce Gamblin as a witness to prove the fact which Wilson and Sheffield testified he stated to them. The inquiry was therefore not in reference to a collateral and immaterial matter. Witt v. State, 159 Miss. 478, 132 So. 338.