Summary
In Rosser v. State, 230 Miss. 573, 575-77, 93 So.2d 470, 471 (1957), after a collision resulting in a fatality, the defendant was charged with manslaughter for having negligently operated his automobile while under the influence of alcohol.
Summary of this case from State v. VandeverOpinion
No. 40181.
March 18, 1957.
1. Automobiles — manslaughter — culpable negligence in operation of automobile — evidence presented jury issue as to defendant's guilt.
In prosecution for manslaugher by culpable negligence in operation of an automobile, evidence presented jury issue as to defendant's guilt.
2. Criminal law — refusal to permit accused to prove his general reputation in community in which he lived as a careful driver — reversible error.
Accused should have been permitted to prove his general reputation in the community in which he lived as a careful driver of automobiles, and refusal to permit such proof constituted reversable error.
3. Evidence — proof of previous good character of defendant — admissible as matter of right.
Proof of previous good character of defendant in a criminal prosecution is admissible as a matter of right.
4. Evidence — as to defendant's general reputation — generally.
Evidence relating to general reputation of defendant should be confined to the particular trait or traits involved in the nature of the charge against him and such evidence is admissible for what it is worth to the jury in whose minds it may create a reasonable doubt.
5. Evidence — as to defendant's general reputation as a careful driver relevant as tending to rebut inference of culpability.
Evidence of accused to prove his general reputation in the community in which he lived as a careful driver was relevant as tending to rebut the inference of culpability, an essential element of the crime of manslaughter by culpable negligence in operation of an automobile.
6. Continuance — refusal to grant — appellate review.
Supreme Court is most reluctant to reverse a conviction based on refusal to grant defendant a continuance.
7. Continuance — trial Court should have granted defendant's request for.
Under facts disclosed by record the Trial Court should have granted defendant's request for a continuance.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Clay County; JOHN D. GREENE, JR., Judge.
B.H. Loving, A.M. Edwards, Lenore Loving, West Point; J.A. Phillips, Macon, for appellant.
I. The Circuit Court erred in overruling the motion of appellant for a continuance or at least in not, under said motion, resetting the case for trial at a later date during the time provided by law for the holding of said term of court. Blakeney v. State, 228 Miss. 162, 87 So.2d 472; Cruthirds v. State, 190 Miss. 892, 2 So.2d 145; Gray v. State, 223 Miss. 554, 78 So.2d 588; Amend. XIV, U.S. Constitution; Secs. 14, 26, Constitution 1890.
II. The Court erred in overruling the demurrer to the indictment. Williams v. State, 161 Miss. 406, 137 So. 106.
III. Procedural matters which are reversible error: (A) Recalling petit jurors after they had been finally discharged, (B) Permitting the State to reopen the case after the State and the appellant had rested and the State had not yet proven the cause of the death of Mrs. Clyde Wilson, which entitled appellant to a peremptory instruction, and appellant had made a motion for such instruction. (C) Refusing an instruction which had been previously given to appellant.
IV. The evidence was insufficient to sustain the conviction of the appellant. Cutshall v. State, 191 Miss. 764, 4 So.2d 289; Goudy v. State 203 Miss. 366, 35 So.2d 308; Henderson v. State, 199 Miss. 629, 25 So.2d 133; Scott v. State, 183 Miss. 788, 185 So. 195; Smith v. State, 197 Miss. 802, 20 So.2d 701.
V. Reversible errors in the rulings of the Circuit Court on the evidence.
A. Permitting Mrs. Wilson's doctor to testify as to the cause of her death was error. Sec. 1697, Code 1942.
B. Sustaining the State's objection to appellant's testimony as to his state of mind and his intention on the occasion involved was error.
C. Sustaining objections of the State to character witnesses testifying as to the general reputation of the appellant in the community in which he lives as to being a careful driver was error. Matson v. State, 83 Miss. 647, 37 So. 70.
VI. The Court committed reversible error in the refusal of instructions requested by appellant. Cutshall v. State, supra.
John H. Price, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The Trial Court did not err in overruling appellant's motion for continuance and did not err in failing to reset this case for trial at a later date during the time provided by law for the holding of said term of court. Goins v. State, 155 Miss. 662, 124 So. 785; Poole v. State, 229 Miss. 176, 90 So.2d 213.
II. The Court did not err in overruling the demurrer to the indictment. Washington v. State, 222 Miss. 782, 77 So.2d 260; Sec. 2451, Code 1942.
III. No reversal is warranted on procedural matters. Baird v. State, 146 Miss. 547, 112 So. 705; Clark v. State, 181 Miss. 455, 180 So. 602; Crawford v. State, 223 Miss. 189, 77 So. 925; Howze v. State (Miss.), 43 So.2d 191; Gant v. State, 219 Miss. 800, 70 So.2d 28; Morris v. State, 148 Miss. 680, 114 So. 750; Perkins v. State, 229 Miss. 299, 90 So.2d 650; Russell v. State, 185 Miss. 464, 189 So. 900.
IV. The evidence was sufficient to sustain the conviction of the appellant. Hatcher v. State, 230 Miss. 257, 92 So.2d 552.
V. There were no reversible errors in the rulings of the Circuit Court on the evidence. Greer v. Pierce, 167 Miss. 65, 147 So. 303; Summerville v. State, 207 Miss. 54, 41 So.2d 377; Vance v. State, 182 Miss. 840, 184 So. 280.
VI. The Lower Court did not commit error in refusing certain instructions requested by appellant.
Johnson W. Rosser was indicted for manslaughter. The charge was that he unlawfully killed another by culpable negligence. The trial resulted in a verdict of guilty with recommendations of mercy. Defendant was sentenced to serve six years in the penitentiary.
(Hn 1) The evidence for the State was that Rosser was under the influence of beer and was culpably negligent in the operation of his automobile on a public highway, resulting in a collision in which the deceased met her death. Evidence for the defendant was that he was not under the influence of beer and that the collision was due to mechanical defect in defendant's vehicle of which he had no prior knowledge. The evidence was sufficient for the jury to accept the State's version.
The case presents two questions: (1) Whether, in a prosecution for manslaughter by the culpable negligence of accused in the operation of an automobile, the accused may prove his general reputation in the community in which he had lived as a careful and prudent driver of automobiles, and (2) whether defendant should have been granted a continuance, or was entitled to have his case passed until later in the term, under the particular facts and circumstances presented by his motion for continuance.
(Hn 2) Appellant offered, and the court refused to admit, the testimony of four qualified witnesses who would have testified that appellant had the general reputation in the community of his residence of being a careful driver of automobiles. (Hn 3) Proof of good previous character of a defendant in a criminal prosecution is admissible as a matter of right. Character is used in this sense as being the same as general reputation. (Hn 4) But the evidence relating to such general reputation should be confined to the particular trait or traits involved in the nature of the charge against the defendant. McElroy's Mississippi Evidence, Sec. 30, p. 124; Underhill's Criminal Evidence, 5th Ed., Sec. 191; DeAngelo v. State, 187 Miss. 84, 192 So. 444. Such evidence is admissible for what it is worth to the jury in whose minds it may create a reasonable doubt, Lewis v. State, 93 Miss. 697, and as an aid to the jury in estimating the other evidence, Powers v. State, 74 Miss. 777, 21 So. 657; (Hn 5) and in this case such evidence is relevant as tending to rebut the inference of culpability, an essential element of the crime charged.
(Hn 6) The motion for continuance was based on a somewhat involved situation. This court is most reluctant to reverse a case on a refusal to continue a case, (Hn 7) however, we think the trial court should have continued the case or passed it over until the following week under the particular circumstances. A statement of the circumstances would be lengthy. Since a similar situation will not likely again develop in this or any other case, a full discussion would add nothing of value to the reports.
Reversed and remanded.
Roberds, P.J., and Kyle, Arrington and Ethridge, JJ., concur.