December 8, 1947.
1. CRIMINAL LAW.
Where there is no substantial evidence to support conviction of crime charged, the point may be raised for first time on appeal notwithstanding failure to request a peremptory charge.
2. CRIMINAL LAW.
Where defendant made no request for peremptory charge, and evidence was insufficient to support conviction of manslaughter under culpable negligence statute, defendant would not be discharged, but case would be remanded to permit defendant to make such request in the trial court (Code 1942, sec. 2232).
APPEAL from the Circuit Court of Lowndes County.
W.L. Sims and Sams Jolly, all of Columbus, and Roy T. Mobley, of Alamogordo, N. Mex., for appellant.
The appellant, E.A. Ruffin, Jr., was indicted and convicted in the circuit court of Lowndes County, Mississippi, at the November 1946 term of the circuit court of said county, on the charge of manslaughter and sentenced by the court to serve a term of one year in the State Penitentiary at hard labor. The testimony shows that appellant was driving his automobile in a northerly direction and the deceased was driving his team of mules to a wagon in a southerly direction on a public road in Lowndes County and in or near a sharp curve in the road the car driven by the appellant and the wagon and team driven by the deceased met in this curve, at which time the left side of the automobile of appellant struck the left wheel of the wagon, or the left wheel of the wagon struck the left side of the automobile. The left front wheel of the wagon was knocked off, causing the deceased to fall on the double tree of the wagon, between the wagon bed and the mules, and as a result thereof the mules became frightened and ran, and at the same time began to kick, kicking the deceased in the head and other parts of the body, which caused his death. There was no eyewitness to the collision other than the appellant. Taking the testimony, all of which was circumstantial, other than that of the appellant, we are unable to see that the death of the deceased was caused by and was a proximate result of grossly culpable negligence of the appellant, as we understand culpable negligence means that the appellant was conducting himself by the driving of said automobile in such a manner as to have reached the state of being wanton and reckless to such an extent so as to totally disregard the safety of human life or property at the time of the accident. This we think is wholly beyond the record in the case.
The evidence wholly failed and there was an entire absence of any evidence to convict the accused of the crime charged in the indictment. This contention being correct, the question can be raised for the first time on appeal, even though the accused failed to make a motion for a new trial.
Clark v. State, 100 Miss. 751, 57 So. 209; Cogsdell v. State, 183 Miss. 826, 185 So. 206; Patterson v. State, 188 Miss. 718, 196 So. 757; Smith v. State, 197 Miss. 802, 20 So.2d 701; Broadway, etc., Bridge Co. v. Commonwealth, 173 Ky. 165, 190 S.W. 715; 3 Am. Jur. 32, Sec. 246, p. 33, Sec. 248; 5 Am. Jur. 927, Sec. 790; 24 C.J.S. 288, 289, Sec. 1672, p. 365, Sec. 1694.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
Argued orally by J.O. Sams and R.T. Mobley, for appellant.
Appellant was indicted for, and convicted of, manslaughter, under the culpable negligence statute, Sec. 2232, Code 1942.
The brief by the Assistant Attorney General shows that he had made a close study of this record, and he says "I am frankly doubtful of the sufficiency of the evidence to support the verdict under the principles announced in Smith v. State, 197 Miss. 802 [ 20 So.2d 701, 161 A.L.R. 1], and other cases since decided." In the concurring opinion in McKinney v. State, 196 Miss. 826, 832, 18 So.2d 446, 447, it was said: "Experience has shown that under that statute (the culpable negligence statute) juries are overinclined to convict on proof of what is in fact no more than simple negligence, and as a result there have been more reversals in this class of cases than perhaps in any other that comes before us." The most that can be made out of the present record, when conjectures are laid aside, is a case of negligence but not culpable negligence.
But the defendant made no request for a peremptory charge. Had he done so, it would in all probability have been granted, inasmuch as that would have been proper. There being no substantial evidence to support a conviction of the crime charged, that point may be raised for the first time on appeal. Patterson v. State, 188 Miss. 718, 722, 196 So. 757; Cogsdell v. State, 183 Miss. 826, 185 So. 206.
Although we allow the point to be raised here for the first time, and which for fundamental reasons we must, we do not grant a discharge here when the defendant has not requested it in the trial court. If, as in this case, he makes no request for a peremptory charge there, we send the case back that he may be required to do there what he ought to have done, if he is to be finally discharged.
Reversed and remanded.