Smith v. State

Roberds, P. J. About three o’clock in the afternoon of December 17, 1956, a collision occurred between an International trailer-truck, being driven by Smith, the appellant, and a 1956 Ford two-door sedan passenger automobile, being driven at the time by Mrs. Betty Jean (Jack) Hardin. Mrs. Hardin was instantly killed. Smith was convicted of involuntary manslaughter, as a result of the death of Mrs. Hardin, and sentenced to pay a fine of One Thousand Dollars and the court costs. Smith appealed to this Court. His main contention is that the testimony was insufficient to sustain the conviction. The rule in this State by which to test the sufficiency of the evidence to sustain convictions of this type is that the negligence of accused must he tantamount “to a wanton disregard [888] of, or utter indifference to, the safety of hnmsan life.” Smith v. State, 197 Miss. 802, 20 So. 2d 701; Suber v. State, 226 Miss. 525, 84 So. 2d 793; Hatcher v. State, 230 Miss. 257, 92 So. 2d 552. There is little dispute in the testimony. It is amply sufficient to justify the following findings of fact: Mr. and Mrs. Hardin resided at Eye, Colorado. They had become man and wife December 8, 1956, eight days before the deplorable accident. They were on their bridal trip. The accident happened on U. S. Highway 98, in George County, Mississippi, about eight miles east of Lucedale, this State. Mrs. Hardin was driving at the time. Miich travel passes over this highway. It was paved. She was going up a hill, driving at a moderate rate of speed. There were yellow lines forbidding motorists to cross these lines into the opposite lane of the highway. The road ran almost east and west. The Ford car was on its south side of the highway, the proper side. Smith suddently came over the top of the hill in a 1951 International truck-trailer. He was driving fifty to sixty miles per hour. He ivas traveling west. He was in the south lane of the highway, the wrong lane. He ran into the Ford, demolishing it, killing Mrs. Hardin instantly. The trailer-truck continued west some two hundred eighty-five feet before stopping. Greater negligence than this is hard to conceive unless accused intentionally and willfully commits the act. The verdict of the jury was amply justified. Appellant endeavors to make much of what may, or may not, be a discrepancy in the State’s proof. Hardin testified that after the collision he approached Smith and asked “What did you do, fellow, go to sleep? * * * I guess you know you have killed her”, and that Smith turned about and went to where he had parked his trailer-truck without saying anything. The residence of Mr. Shelby Smith, ex-sheriff of George County, was located about two hundred and fifty [889] yards west of the scene of the accident. He heard the impact and was the first person on the scene except those involved. Mr. Hardin was in his car with his arms around his wife. She was dead. He testified he heard Smith, the appellant, say “I must have been asleep.” The witness did not specify just the moment this was said. Mrs. Shelby Smith came to the scene after her husband got there. She testified she heard Mr. Hardin say to Smith “You killed my wife. Why did you do it? Are you drunk?”, and that Smith replied “No, I'must have fallen asleep.” No exact moment of time is fixed as to when any of the remarks were made. Whether Hardin had only one or more than one conversation with appellant is not definitely shown. Whatever discrepancy is presented by this situation was a matter for the jury. Appellant complains of the refusal of the court to grant him instructions Nos. 5, 8 and 10. Instructions Nos. 5 and 10 required the jurors to believe defendant guilty beyond every reasonable doubt and to the exclusion of every reasonable hypothesis, — instructions applicable to cases resting entirely upon circumstantial evidence, but not applicable to the evidence "in this ease, where much of the testimony was given by an eye-witness to the events, Instruction No. 8 announced the rule of reasonable doubt and informed the jurors that each and every one must believe defendant guilty beyond a reasonable doubt before he should vote to convict. The instruction might properly have been granted, but it was not error to refuse it because other granted instructions announced the same rules of applicable law and prescribed the duties of the jurors. Appellant assigns as error the action of the court in granting to the State instructions Nos. 1 and 4 in the form granted. The complaint is that these instructions failed to charge the jurors that they must believe defendant guilty “to the exclusion of every reasonable hypothesis of innocence.” As above-shown, this case [890] did not rest upon circumstantial evidence alone, nor, for that matter, mainly upon such evidence. It might be added that the instructions granted the State and defendant, taken together, fully and accurately set forth the rules of law and duties of jurors applicable to the facts of this case. It appears to us from this record appellant had a fair trial. Affirmed. McGehee, C. J., and Hall, Lee, Holmes and Ethridge, JJ., concur.