4 So. 2d 289 | Miss. | 1941
Lead Opinion
Appellant was convicted upon a charge of manslaughter predicated of alleged culpable negligence in the operation of an automobile truck upon the highway. The deceased was assisting in the operation of a motor truck equipped with a water tank and sprinkling device, his special duty being to remain afoot closely behind the device to warn and direct motorists approaching from the rear. The highway was rough and certain signs and signals had been placed at various points indicating its condition. The testimony justifies a finding that appellant was traveling in the same direction as the sprinkler truck, and at a rate of from 55 to 60 miles per hour; that appellant was under the influence of intoxicating liquor; and *770 that appellant negligently ran into and killed deceased. Various issues arose as to the facts and the assignment of errors includes admission of testimony, sufficiency of the evidence, and allowance of intructions. Without rehearsing the testimony in greater detail, we content ourselves with the concession that the evidence, regardless of our views thereon, was sufficient to present an issue of culpable negligence.
The only assignment of error in which we find any merit involves the giving of instruction number 3 for the state. It is as follows:
"The Court charges the jury for the State that it is a violation of the criminal laws of the State of Mississippi for a person to operate a motor vehicle on a public highway while under the influence of intoxicating liquor; and if you believe from the evidence in this case beyond a reasonable doubt that the defendant, Floyd Cutshall, unlawfully operated the pickup truck on public highway number 72 at a time when he was under the influence of intoxicating liquor, and in a manner constituting culpable negligence as defined in State instruction number 2, and that as a proximate result thereof Spangler Gregson was killed, then it is your sworn duty to find the defendant guilty as charged."
The indictment was in the statutory form of manslaughter charging that the defendant ". . . did unlawfully and feloniously kill and slay one Spangler Gregson, a human being . . ." This was sufficient. Code 1930, sec. 1211; Bradford v. State,
"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." Culpable negligence was at once the basis of the prosecution and the gauge as to the evidence. State v. Ruffin, 344 Mo. 301,
The driving of a vehicle by one who is under the influence of intoxicating liquor is a misdemeanor. Sec. 49, ch. 200, Laws 1938. The driving of an automobile while in this condition is therefore per se negligence. Williams v. State,
For us to so hold would be judicial legislation. If it be a desirable expedient it should commend itself to the judgment of the legislative department. Although a jury may find that the conduct of the operator constitutes gross negligence, the violation of the statute is not culpable negligence per se within the definition of Section 1002. State v. Campbell,
It must be kept in mind that appellant is here prosecuted not for driving while under the influence of intoxicating liquor but for culpable negligence. These are *772
separate offenses for which one could be separately prosecuted and neither prosecution would bar the other. See State v. Sisneros,
While the operation of automobiles by those under the influence of intoxicating liquor constitutes a growing menace and is deserving of universal censure and legislative condemnation, yet in a prosecution for manslaughter based upon the culpable negligence of a driver it is *773
the fact that the driver is under the influence of liquor which is important and not the incident that it constitutes a misdemeanor. It is not the fact but the effect of the intoxication which is relevant. That such conduct is negligence is material; that it is a criminal offense is not. If it were true that driving while under the influence of intoxicating liquor was per se culpable and criminal negligence the case would be different. But such is not the law in this state. We are not here dealing with a civil case where the fact of violation of a traffic law would create a prima facie case of simple negligence. Culpable negligence connotes a distinct quality of recklessness from simple or gross negligence in civil cases. Wells v. State,
The jury were warranted in taking into account any mental and physical condition which they found due to the influence of intoxicating liquor. But it was only an incident or an attendant condition that he was subject to prosecution for this misdemeanor. Conceding but not deciding that the state could in its instruction hypothesize all factors of defendant's conduct such as speed, intoxication or other traffic violations as bases for a finding of culpable negligence it is prejudicial error to characterize them as crimes so as to place the jury in the position of finding the defendant guilty of one crime because guilty of another.
Bradford v. State,
In Wells v. State,
In most of those states which include in a definition of manslaughter all cases where death results while and because the defendant is committing an unlawful act it is so prescribed by statutes so declaring. Appellant's guilt under the indictment and supporting testimony may be shown not by evidence that he was violating the law nor that death was caused while he was under the influence of intoxicating liquor, but because of such condition, present to an extent constituting culpable negligence. State v. Ruffin, supra.
The inclination to condemn the growing tendency to operate vehicles while intoxicated should not be curbed. But this laudable sentiment should not find outlet in intimations to the jury to use the occasion to denounce a practice by convicting a defendant of that with which he is not charged. One who is guilty of driving while under the influence of intoxicating liquor may be deprived of his right to drive upon the highways but not of his right to a fair and impartial trial under due process. *775
The error in giving of this instruction was not harmless.
Reversed and remanded.
Dissenting Opinion
It is at once manifest that this evidence made a case of homicide as a result of culpable negligence.
There was no harmful error in the instructions for the state. In several of them culpable negligence was described not only correctly but in clear terms. The reversal of the judgment on account of the giving of Instruction *776 3 for the state is, in my opinion, groundless. It did not in the remotest degree authorize the jury to find the appellant guilty on the ground alone that he was intoxicated. That part of the instruction is in this language: "at a time when he was under the influence of intoxicating liquor, and in a manner constitutingculpable negligence as defined in State Instruction No. 2." (Emphasis mine.) In short, the jury were told that if the evidence showed beyond a reasonable doubt that appellant operated the truck when he was under the influence of intoxicating liquor "and in a manner constituting culpable negligence," they would be authorized to find him guilty. It seems that in plain language the jury were told that intoxication alone was not sufficient to authorize a verdict of guilty.
Smith, C.J., concurs in this dissent.
AI-generated responses must be verified and are not legal advice.