Opinion
No. 36371.
May 26, 1947.
HOMICIDE.
Evidence was insufficient to support a finding by jury that death was caused by an act of defendant so grossly negligent as to be tantamount to a wanton disregard of or utter indifference to the safety of human life, and defendant's request for a verdict of not guilty should have been granted.
APPEAL from the circuit court of Lincoln county. HON. J.F. GUYNES, Judge.
Garth Cassedy, of Brookhaven and Hazlehurst, and J.D. Womack, of Baton Rouge, La., for appellant.
On may 6, 1946, Dan Calcote, Jr., 17 years old, carried two mules in a one ton 1941 Ford pick-up truck from his father's cattle barn in Brookhaven to Summit, Mississippi. The truck body was one which his father, Dan Calcote, Sr., had put on it. The two mules, according to Dan Calcote, Sr., weighed between 850 and 1000 pounds each. Dan Calcote, Jr., began his return trip in the same truck with the same mules from Summit to Brookhaven about four o'clock the same afternoon. Calvin Brown, a negro of Baton Rouge, Louisiana, was driving a ton and half 1946 Ford truck with a 26 x 8 foot trailer for a Mr. O.M. Hughes of Baton Rouge, carrying five pieces of ten foot culvert pipe, 48 inches in diameter, some 18 inch pipe, and some 12 inch pipe. He was proceeding north on Highway 51 to the place just north of Bogue Chitto, where in his attempt to pass the Calcote truck, which was also headed north, the accident occurred between the two trucks and where Dan Calcote, Jr., was fatally injured. The appellant had blown his horn and was in the process of passing the Calcot truck when the mules with their tremendous weight swayed the small body of the pick-up truck over the center line of the highway, causing it to catch in or be hit by the appellant's truck. No one contradicted the appellant's statement that he blew his horn and remained on the west side of the road while attempting to pass.
The proximate cause of the accident was the heavy swaying by a ton of mules in a truck too light for their safe transportation. Certainly, the State fell far short of showing any criminal or culpable negligence of the appellant which indicated a willful disregard of the life or safety of Calcote, Jr., or his truck.
Scott v. State, 183 Miss. 788, 185 So. 195; Shows v. State, 175 Miss. 604, 168 So. 862; Smith v. State, 197 Miss. 802, 20 So.2d 701; Gregory v. State, 152 Miss. 133, 118 So. 906; Cutshall v. State, 191 Miss. 764, 4 So.2d 289; Sanford v. State, 195 Miss. 896, 16 So.2d 628; Sims v. State, 149 Miss. 171, 115 So. 217; Robertson v. State, 153 Miss. 770, 121 So. 492.
It has been for some time the established rule in this State that where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.
Weathersby v. State, 165 Miss. 207, 147 So. 481, 482; Houston v. State, 117 Miss. 311, 78 So. 182; Patty v. State, 126 Miss. 94, 88 So. 498; Wesley v. State, 153 Miss. 357, 120 So. 918; Walters v. State, 153 Miss. 709, 122 So. 189; Gray v. State, 158 Miss. 266, 130 So. 150; Thornton v. State, 178 Miss. 304, 170 So. 541; Webster v. State, 194 Miss. 381, 12 So.2d 533.
It seems that the only theory upon which the State could base any possible charge of culpable negligence in this matter is that the appellant was driving at such an excessive rate of speed as to be culpable negligence in itself. On the matter of speed, the testimony of appellant should have been accepted by the trial court, as well as his other testimony. Appellant was in the best position to know and was contradicted only by the guess or speculation of the witness Boyte who first said about the speed that he "couldn't tell from where I was at." Then upon further question as to his estimate he estimated the speed upon the basis of a mere glance. He looked up because he heard the horn of the truck (which indicates is was amply sounded) and saw the departing vehicles in his direct line of vision, unquestionably only for a very few seconds at most, since he did not see the collision, which occurred a distance of 150 to 200 yards away. It is submitted, with deference, that this evidence, and with all the other evidence for the State, falls far short of establishing even simple negligence, much less culpable negligence "so clearly evidenced as to place it beyond every reasonable doubt." The explanation given by appellant conforms to the physical facts and all the reasonable probabilities. He pulled over to the left side of the road, saw a clear way ahead, sounded his horn or whistle in ample time, and expected that the deceased would draw over to or remain on the right hand side of the highway. Under such circumstances, the appellant had no reason to anticipate that in passing he would not be able to do so with the usual and reasonable degree of safety in such passing.
See Weathersby v. State, supra; Smith v. State, supra; Stout v. Nehi Bottling Co. (La.), 146 So. 720; Code of 1942, Secs. 8183, 8185, 8188.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, and Hugh V. Wall, of Brookhaven, for appellee.
The evidence in the case was sufficient to authorize the jury to find a verdict of manslaughter. The case presents one peculiarly for a jury's judgment.
See Volume 5, Mississippi Digest, "Criminal Law," Key Nos. 741-747.
The facts of this case bring it within the provisions of Section 2227, Code of 1942, and the proof shows a case of culpable negligence. Taking the defendant's own statement that he blew his horn to give notice of his desire to pass the Calcote truck 25 or 30 feet behind the Calcote truck, this is entirely unreasonable as a compliance with the practice of giving notice in passing another truck that you are about to do so. If we take appellant's own statement that he was driving at 35 miles per hour, the truck he was driving at the rate of speed would travel between 73 or 74 feet per second and the driver of the other truck could not react to his signal in time. But the evidence which the jury had a right to believe shows that appellant was traveling not less than 60 miles per hour, and according to one witness 72 miles per hour, when the signal was given. The jury was warranted in finding culpable negligence from the evidence and could have so found even from the defendant's evidence.
The evidence is wholly insufficient to support a finding by the jury that the death of Dan Calcott, Jr., was caused by an act of the appellant so grossly negligent "as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life." Smith v. State, 197 Miss. 802, 20 So.2d 701, 706, 161 A.L.R. 1. Consequently the court below should have granted the request of appellant for a verdict of not guilty.
Reversed, and the appellant discharged.