Opinion
No. 34816.
December 8, 1941.
1. WITNESSES.
As impeachment a witness may be interrogated as to the fact of former convictions of crime and identity of crime, and defendant, when used as a witness in his own behalf, is within such rule.
2. AUTOMOBILES.
Evidence sustained conviction of manslaughter under indictment charging defendant with culpable negligence in the operation of an automobile.
McGEHEE, GRIFFITH, and ANDERSON, JJ., dissenting.
APPEAL from the circuit court of Jones county, HON. F. BURKETT COLLINS, Judge.
Edwards Edwards, of Mendenhall, for appellant.
We base our right to a reversal on the errors assigned as to the action of the court in refusing to grant to the defendant a peremptory instruction as shown by the record, and for the further reason that the overwhelming weight of the evidence is against the verdict of the jury.
The overwhelming weight of the evidence is to the effect that the automobile driven by Mr. Anderson was immediately in front of the defendant and blocking his way, same being on the right-hand side of the center of Highway No. 11, and that in order to avoid a collision the defendant was forced to suddenly turn his car still further to the right of the center of said highway; that this blocking of his right-of-way forced him to turn his car suddenly still further to the right of the center of said highway, which resulted finally in causing the death of the deceased. Can it be said that the defendant did any more than any prudent and honest man would have done, confronted as he was by the Anderson car so suddenly appearing in his way. This was a circumstance confronting him which called for quick action and placed his entire attention on his automobile, necessarily so, and he did not see the deceased at this time, and it is not shown by any of the evidence that the defendant did see the deceased or his companions at the time he swerved his car around the Anderson car, and it is not denied or shown by any of the evidence that the defendant did not make every reasonable effort to so steer his car as to get it back under control and on the proper place in said highway.
In support of this theory we cite the case of Sims v. State, 149 Miss. 171, 115 So. 217. From the above cited authority we take the following definitions of culpable negligence: "The omission to do something which a reasonable, prudent, and honest man would do, or the doing of something which such man would not do, under the circumstances surrounding the particular case."
Under the testimony we submit that the defendant was not guilty of culpable negligence in the operation of his automobile so much so that he could be guilty of the crime of manslaughter by his car running over and causing the death of the deceased. Greek L. Rice, Attorney-General, by Geo. H. Ethridge, Assistant Attorney-General, for appellee.
The testimony in the case is hopelessly in conflict on the material facts. I submit that as the jury had the right to accept certain witnesses' testimony and found a verdict thereon, this court cannot distrub their finding. There was nothing of a prejudicial nature injected into the instructions or into the case so far as this record shows. It appears, therefore, that the jury had ample evidence before them on which to find culpable negligence, as they did find by rendering a verdict of guilty as charged.
Appellant was convicted of manslaughter under an indictment charging him with culpable negligence in the operation of an automobile upon the highway. There is no error in the giving or refusing of instructions. There was no error in examining appellant as a witness touching former convictions of crime. As impeachment a witness may be interrogated both as to fact of conviction and the identity of the crime. Peacock v. State, Miss., 174 So. 582. A defendant when used as a witness in his own behalf is within the rule. Appellant assigns further that the verdict is against the overwhelming weight of the evidence.
There is a sharp conflict in the testimony as to whether the conduct of appellant in suddenly veering to the right and running off the paved portion of the highway was necessitated by the presence of another automobile which was turning to the left in front and across the path of appellant. The issue thus presented to the jury could have been resolved either way, and we are unable to say that their verdict is not supported by the evidence nor that it is contrary to its overwhelming weight.
Affirmed.
After a careful study of the record in this case I am of the opinion that the overwhelming weight of the reasonable and believable testimony clearly discloses that after the southbound car had stopped at the intersection, for the traffic light to change from red to green, it then proceeded to the east for the purpose of entering a street leading toward the business section of the City of Ellisville and then suddenly stopped across the east side of the public highway upon seeing the appellant's car approaching the intersection from the south, thereby rendering it necessary that the appellant swerve his car to the right and off the pavement, in order to go around the other car and avoid a collision therewith; that in doing so the appellant was not in position to see the pedestrians ahead until he was in such proximity to them as to be unable to avoid striking the deceased. That, therefore, if the appellant was guilty of negligence it consisted in his failure to anticipate that the other car might turn to the east in front of him, as it had no right to do, at a time when he had the first right to proceed across the intersection, and also in not having his own car under such control that he could have avoided the accident after being confronted with the impending emergency; it being shown that after the position of the other car across the highway and of the pedestrians respectively became known to him he put forth every effort to avoid a collision with the car and to get his own back onto the pavement before striking the deceased. Moreover the driver of the other car fully corroborated the foregoing version of the facts.
Since it was held in the case of Gregory v. State, 152 Miss. 133, 118 So. 906, 909, that criminality cannot be predicated upon mere negligence or carelessness, but only upon "that degree of negligence or carelessness which is denominated as gross and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the same circumstances as to furnish evidence of indifference to consequences," I do not think it safe to sustain the conviction of manslaughter in this case on the ground of culpable negligence, unless the result of another trial should warrant it.
Griffith and Anderson, JJ., concur in this dissent.