4 So. 2d 227 | Miss. | 1941
Lead Opinion
This appeal is from a conviction of manslaughter. The appellant is alleged to have been operating an automobile at a high and dangerous rate of speed, traveling east on U.S. Highway No. 80 at night, when he ran into the rear end of a car in which the deceased was riding. The testimony on behalf of the state was to the effect that the car in which the deceased was riding was proceeding east on the south side of the highway at about thirty-five or forty miles per hour when it was struck on the right rear end in such a manner as to drive the trunk and rear seat forward with such force as to seriously injure the deceased and his companion who were riding on the rear seat, and to cause the car to skid on the pavement a distance of approximately seventy-five yards before turning off the highway to the right; that the appellant's car proceeded a distance of approximately ninety yards after the impact before turning off the highway to the left; and that the skid marks of both cars were left plainly visible on the south of the center line of the pavement for these approximate distances. On behalf of the appellant the testimony disclosed that when he first observed the other car in front of him some 100 feet away, it was on the north or left side of the road going east; that it turned toward and entered onto the south portion of the highway before being struck by the appellant's automobile; and that the appellant was not then driving in excess of forty or forty-five miles per hour.
It also appears from the testimony on behalf of the state that the occupants of the car in which the deceased was riding were passing a residence at which they intended to get another passenger, and had decided to proceed a short distance further so as to turn their car around when the accident occurred. In view of the serious *654
conflict in the testimony both as to the rate of speed of the appellant's car and the position of the other car on the highway when it was being overtaken, the appellant was entitled to the instruction requested by him, and which was refused by the trial court, in the following words: "The Court instructs the jury for the defendant that it is the duty of each and every member of the jury in this case to decide the issues presented for himself, and if, after consideration of all the evidence in the case and the instructions of the court on the law, and from consultation with his fellow-jurors, there is a single juror who has a reasonable doubt of defendant's guilt, it is his duty, under his oath, to stand by his conviction and favor a verdict of not guilty so long as he entertains such doubt." Lawson v. State,
These cases clearly hold that where there is a serious conflict in the evidence on the ultimate issue of the defendant's guilt, it is reversible error to refuse the quoted instruction. To say that there was no serious conflict in the evidence in the case at bar, it would be necessary to ignore the testimony offered by the appellant; and this we cannot do.
It is true that the cases of Ammons v. State and Bell v. State, supra, were expressly overruled, insofar as the particular question here involved is concerned, by the later case of Walford v. State,
The only other error assigned is that the appellant should have been granted a peremptory instruction, but we are of the opinion that under all the facts and circumstances it was a question for the jury to decide as to whether the death of the deceased was the result of culpable negligence on the part of the appellant, as defined in the case of Gregory v. State,
Reversed and remanded.
Dissenting Opinion
It is quite true that jurors should not violate their oaths by voting any convictions save their own. There are other duties also that should be well understood by competent and intelligent jurors, which it is the privillege and the duty of counsel to emphasize in their arguments. Indeed it is the fact that they may do so without the sanction of a written instruction which demonstrates that at best it is but advisory and its allowance within the discretion of the Court. Since counsel are free to make the implications of the instruction the basis of the argument without the authority therefor in the Court's instruction, the right to demand the written sanction of the Court to this end is shown not to exist. Its effect is to enlist the Court upon the side of the defendant by supplementing his counsel's argument with a judicial admonition. It is indeed desirable that juries in criminal cases be reminded that their verdict must be unanimous. To go further and instruct them as to the ramifications to which this principle may lead is to invade a domain sacred to the jury. Their reasoning powers and their methods of deliberation ought not to be coerced nor should the Court "put the jury's process of reasoning into a mental straight jacket." Hartley v. State,
The necessity for consultation was stressed in the Cartee case. Cartee v. State,
This Court has on several occasions rejected instructions which, although when carefully analyzed, were found to be technically true, but which were so involved in their language as to invite misconstruction by the jury. Jurors should not of course yield honest convictions save to better reason, yet such truism is open to full comment by defendant's counsel who should not be heard to complain that the Court did not see fit to reinforce such argument with so far-reaching an expression of its endorsement.
Nor do I think the matter has been finally settled by *658
this Court. The decisions which have canvassed this matter are Lawson v. State,
I am authorized by Smith, C.J., to say that he concurs in this opinion. *659