Sims v. State , 149 Miss. 171 ( 1928 )

McGowen, J.,

delivered the opinion of the court.

The appellant, Ernest Sims, was indicted, tried, and convicted for the crime of manslaughter in the circuit court of Warren county, and sentenced to serve a term of three years in the State Penitentiary. Prom this conviction and sentence imposed he prosecutes this appeal.

The indictment was drawn under section 1023, Hemingway’s Code 1927 (section 1244, Code of 1906), which is as follows:

“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.”

In the language of this statute, the indictment charged the appellant with manslaughter in the killing of Waverly Conway as a direct result of a collision between a bus driven by the appellant and an automobile driven by the deceased. Conway was hurled from his car by the force of the collision and died, from the injuries received by him, a short while after. The collision occurred at a dangerous bend—'described by one of the witnesses as an “elbow curve”—on the-public highway between Jackson and Vicksburg, at the corner of the Jewish Cemetery. This curve is very abrupt, making a complete right angle turn within a few feet, and, upon.approaching it, going towards Vicksburg, the road goes west, then turns to the left around the curve and goes south. On the inside of this curve, on the left going to Vicksburg, is the Jewish Cemetery, around which is an iron picket fence, which extends, along the road for some distance before reaching the curve and after passing it. Along the inside of the curve, between the fence and the road, a line of stobs or posts is driven to prevent vehicles from striking the fence when making the curve.

The car driven by the appellant was a large passenger bus, thirty feet in length from bumper to bumper, and was used by appellant in transporting passengers from Jackson to Vicksburg, and was then on its trip west. The car driven by Conway was a Dodge roadster, and he was leaving Vicksburg, going in an ^easterly direction toward Jackson.

The testimony for the state tended to show that from the time the bus left Jackson, it was driven by appellant in a careless and reckless manner, and at times at a very high rate of speed; that a young lady sat beside him on the front seat; that he was, to some extent, more engrossed in his attentions to this bewitching siren, who amused herself by powdering his nose and lighting his cigarettes for him, than his driving; and that they were, according to the state’s testimony, very much interested in each other. One lady, a passenger on the bus the entire trip, testified that the attentions of the fair damsel to the driver caused him to lose control of the bus so that it left the hig’hway and ran into a shallow ditch to the side of the highway several miles from where the accident occurred; and that at another place along the route, when meeting another car, the driver of the latter was forced to leave the road on his side.

Mrs. Keenum testified that the appellant was driving “pretty peert” when he went tó make the curve; that Mr. Conway “had done made his turn, and he was right absolutely up against the curb, Mr. Conway was, and when Sims [the appellant] when he got there, instead of keeping to the right, he just cut right across and hit him, Mr. Conway, right in on his own roadway, that’s the way I looked at it, and the way anybody else would, I guess.” She testified that it was “the front, the engine, the radiator,” which struck Conway’s car; that she did not know at what speed he was driving, but that he was driving “pretty fast.”

Another witness testified that the driver looked as if he were going to take the road straight at the corner; that he didn’t see the car until just after the time of the collision; that Conway’s car was on the right side of the road for him; that the bus driver, when he was almost at the corner, ‘ ‘ just turned the bus around, turned to the left and swung in there and hit the man;” that this occurred just at the time Conway’s car was going around the corner; and that Conway was as far on his right as he could get without going into a ditch.

Leon Hunter, a witness .for the state, testified that he was standing at this curve, and that Conway was driving slowly; that Conway held up his hand and told him that he would pick him up when he got around the curve. He also testified that the bus was on the wrong or the left- hand side of the center of the road at the time of the accident, and stated that the cars passing had to drive to the right-hand side of the bus in order to get by. He said the bus was traveling at a high rate of speed. However, one witness who undertook to estimate the rate of speed at which the bus was traveling fixed it at ten miles per hour.

The defendant and his witnesses testified that the bus was under control, running at a low rate of speed; that the collision occurred because of Conway’s reckless speeding; and that the bus was struck on its left side where the battery box was. The defendant denied that he had been so interested in the young- lady, and she also testified that the driver, the appellant, paid strict attention to the driving of the bus, and that there had been no reckless driving; and that at the time of the accident, the appellant was on the extreme right-hand side of the road and had control of his car.

We set out here instructions 1, 2, and 3 for the state:

‘ ‘ The court instructs the jury that it is the legal duty of a person operating a motor vehicle, on approaching the intersection of a public highway, to reasonably turn o.r cause the same to be turned to the right of the center of the highway, and it is further the- legal duty of a person operating a motor vehicle to turn to the right of the center of the highway when they meet another vehicle.

‘ ‘ The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the death of Waverly Conway was the direct result of and caused by the culpable negligence of Ernest Sims, the defendant, then the said defendant, Ernest Sims, is guilty as charged in the indictment and the jury should so find.

“The court instructs the jury that if they believe from the evidence beyond, a reasonable doubt that the defendant, Ernest Sims,' on approaching the intersection of the highways and the sharp curve at the northwest corner of the Jewish Cemetery, was. on his left-hand side of the center of the highway, and while on said left-hand side of the public highway he carelessly, grossly, negligently, and recklessly collided with or ran into the car of Mr. Waverly Conway, throwing him from his said car, thereby injuring him, and, as a result of said injuries, he died, the defendant is guilty as charged in the indictment, and the jury should so find. ’ ’

We also set out instruction 8, asked for by the appellant and given by the court:

“The court instructs the jury for the defendant that the question in this case is in regard to whether or not at the time and place in question the defendant was guilty of culpable negligence, and that the death of the decedent was proximately caused by such negligence; that culpable negligence means gross or criminal negligence such as evinces a wanton or reckless disregard of the lives or safety of others; and that, in this case, if the state fails to prove either by evidence, or by the lack of evidence, that the defendant, at the time and place in question, was guilty of such gross or criminal negligence as evinces a wanton or reckless disregard of the lives or safety of others, beyond all reasonable doubt, it is your duty to find the defendant not guilty.”

We shall take up the assignments of error in their logical order, without regard to their arrangement by counsel.

First. “The court erred in overruling defendant’s motion for a peremptory instruction” in that the evidence, as a whole, was not sufficient to sustain a conviction of manslaughter. We have detailed enough of the evidence to demonstrate that, according to the evidence of the witnesses for the state, the appellant, at the time of the accident, was driving a heavy passenger bus to the left of the center of the highway; he was in a dangerous curve, had a car thirty feet long to handle, was already on the wrong side of the road, and turned straight into the car of deceased at a time when the deceased was undertaking to stop his car and take on a passenger. All of this is denied by the defendant and his witnesses. But the weight of the evidence and the credibility of the witnesses was a question for the jury. There is no merit in the contention, and we do not understand from the brief of -counsel that he seriously contends, that the appellant was entitled to a peremptory instruction if the evidence shows culpable negligence. This leads us to a discussion of the meaning of the phrase “culpable negligence” in connection with the statute relative to manslaughter. Counsel insists that negligence must not only be reckless and gross and of a higher degree than is required in a civil action, but that the act must be criminal, and cites 29 C. J. 1154, section 141(4). If we understand counsel’s contention, he contends that the act complained of as being criminally and intentionally negligent, in view of this statute, must be so gross as to raise the presumption of malice.

Not so. If this were the rule and the presumption of malice was raised, the act would be intentional, and the crime could no longer be manslaughter, but would be murder. It is unquestionably true that the negligence must he 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 no ironclad statement can be set forth as applicable to all classes of cases. In 1 Words and Phrases, Second Series, p. 1174, the following statement is set forth as a definition, which we think will serve as a general guide to a correct conclusion as to what constitutes culpable negligence. It is as follows:

“The omission to do something which a reasonable, prudent, and honest man would do, or the doing of something which such a man would not do, under the circumstances surrounding the particular case.”

This definition has been approved by a number of courts.

We think the evidence of the passengers on the bus warranted the jury in believing that the defendant was blamably negligent to snch a degree as to amount to culpable negligence, and then and there” was driving, in violation of the motor laws, to-wit, chapter 116i, Laws 1916, to his left of the center of the road.

The peremptory instruction requested by the defendant was properly refused as there was conflict in the evidence, but the state’s evidence made a case of culpable negligence.

Second. It is contended that the court erred in permitting the state to prove the manner of appellant’s driving on this occasion. Counsel presents no authority, but the gist of the offense charged here was a reckless disregard of the rights of others on the public highway; and the evidence that the appellant drove at a reckless rate and out of the road on this particular trip a short time before the accident, and that he drove so far on his wrong side of the road as to force a traveler he was meeting to abandon the road, tended to shed light on the manner of driving at this particular curve where a human life was lost. See 30 C. J. 203, section 433. It also tended to show the reckless and careless state of mind or animus of the defendant at the time of the homicide.

Of course, the evidence that the young lady was engaged in powdering appellant’s nose was not competent, and yet, but for the admission of this evidence, this case could not be reversed.

We think the instructions given for the state correctly announce the law. By them, the jury was told that, while on his left-hand side of the center of the highway he carelessly, grossly, negligently, and recklessly collided with or ran into the car of Mr. Conway, thereby injuring him, and as a result of which injury he died, the defendant is guilty of manslaughter, and the defendant in this case cannot complain because his definition of culpable negligence in instruction 8 was given in said instruction, wherein the jury was told that culpable negligence means gross or criminal negligence such as evinces a wanton or reckless disregard of the lives or safety of others, which will be seen is a stronger statement than is generally approved by the courts.of this country in cases of manslaughter arising from reckless driving of motor vehicles on the public highways.

We do not think there is any merit in the other contentions, or any error in this record upon which we could predicate a reversal.

Affirmed.