Martin Berry, of New Hebron, for appellant.
The court below should have sustained the motion of defendant for a peremptory instruction.
Covington County v. Morris, 84 So. 462.
This indictment is framed, in a way, under section 1211, Code 1930, but the whole evidence in the case was based on section 1002, Code 1930, which holds the killing of a human being, by the act, procurement, or culpable negligence of another and without authority of law manslaughter.
There was no proof that Jebron willfully, unlawfully and feloniously killed and slew a human being. The only issue made in the proof is the negligence.
State v. Prude, 76 Miss. 543; Sims v. State, 149 Miss. 171.
The state proved the death of the child, but we submit that there is no ample and competent proof that any act of this defendant caused the death of the child.
30 C.J. 287, sec. 531; 16 C.J. 749, sec. 1532; Pearson v. State, 97 Miss. 841, 53 So. 689; 16 C.J. 756, sec. 1554; Prewitt v. State, 106 Miss. 82, 63 So. 330; Taylor v. State, 108 Miss. 18, 66 So. 321; Pitts v. State, 43 Miss. 472, 2 Mor. St. Cas. 1655; Raybon v. State, 115 Miss. 730, 76 So. 639.
The discrepancies are significant, we submit, intesting Daniel Berry's story of seeing Jabron give the child whiskey.
We respectfully submit that this was not sufficient to convict defendant and that the case should be reversed for a new trial or that the appellant be discharged.
M. O.R.R. v. Bennett, 127 Miss. 413, 90 So. 113; 48 So. 721; 98 Miss. 28, 53 So. 351; Fore v. R.R., 87 Miss. 218 ; 12 S. M. 604; 8 S. M. 327; Rawls v. State, 105 Miss. 406.
It may be true that if one commits an act in utter disregard of consequences that the recklessness will supply the criminal intent. There must be actual or constructive intent to do the thing which constitutes the crime; otherwise there is no criminal act.
City of Jackson v. Gordon, 119 Miss. 325, 80 So. 785; State v. Irvine, 52 So. 567, 571; Sims v. State, 149 Miss. 171, 115 So. 217; Gregory v. State, 152 Miss. 133, 118 So. 906; 1 Bishop's New Crim. Law, sec. 321.
The jury must not only believe defendant guilty beyond every reasonable doubt arising out of the evidence or lack of evidence of having given the child whiskey, willfully, unlawfully and feloniously, as charged in the indictment or that it was given him culpably negligently, but the jury must believe that the child could not have died and did not die from any cause except from the whiskey and that with this same degree of belief they should have been instructed to the effect that no one except the defendant could have given the child the whiskey.
Haywood v. State, 90 Miss. 461, 43 So. 614; Permenter v. State, 54 So. 949; Hogan v. State, 127 Miss. 407, 90 So. 99.
E.B. H.J. Patterson, of Monticello, for appellant.
The entire record reflects nothing in the way of certainty regarding the connection between the alleged whiskey which the child is supposed to have drunk and its death, but on the other hand, shows conclusively a multitude of uncertainties to the extent, as we believe that any finding by the jury in this case in the face of this record could amount to nothing more or less than conjecture pure and simple, and to add further confusion to the situation as made by the record, the State asked and was granted several instructions that were erroneous and prejudicial, particularly in view of the confusing condition made of this case.
It was error to grant the following instruction: "The court instructs the jury for the state that the killing of a human being by the act, procurement or culpable negligence of any person, without authority of law, shall be manslaughter."
Browning v. State, 30 Miss. 656; Oliver v. State, 39 Miss. 526; Cotheran v. State, 39 Miss. 541; Franks v. State, 39 Miss. 705; Evans v. State, 44 Miss. 762; Durrah v. State, 44 Miss. 789.
The prosecution has the burden of proving that a crime has been committed before the jury can proceed to inquire as to who committed it.
16 C.J. 529, sec. 994; 76 Ala. 47; 12 Cyc. 707; State v. Fontenot, 48 La. 220, 19 So. 112.
Turning to our own decisions, we find the following cases which we believe to be authority for our position that the state wholly failed to sufficiently prove the corpus delicti in the case at bar.
Taylor v. State, 66 So. 321; Brown v. State, 49 So. 146; Bourn v. State, 5 So. 626; Floyd v. State, 103 So. 368; Harris v. State, 124 So. 493.
W.D. Conn, Jr., Assistant Attorney-General, for the state.
It shall be sufficient, in an indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased, concluding in all cases as required by the Constitution.
Section 1211, Miss. Code 1930.
Defendant argues certain contradictory statements as between state witnesses and the unreasonableness of certain other testimony. It is the duty of the jury to sift all of the evidence and weigh the testimony as it stands before them in arriving at its verdict.
Hartley v. State, 161 Miss. 667, 137 So. 518.
The defendant cannot switch objections as between the trial court and the Supreme Court, but is bound by the record which he makes in the trial court.
Peters v. State, 158 Miss. 530, 130 So. 695; Boutwell v. State, 165 Miss. 16, 143 So. 479.
In this type of prosecution "intent" to commit manslaughter is unnecessary. Intent is not necessarily involved where "culpable negligence" is involved.
Tillman v. State, 164 Miss. 100, 144 So. 234.
The court cannot give an instruction unless requested so to do in writing and the defendant cannot complain of the failure to give an instruction where none is requested.
Grady v. State, 144 Miss. 778, 110 So. 225; Tatum v. State, 142 Miss. 110, 107 So. 418; Cosey v. State, 161 Miss. 747, 138 So. 344.
Argued orally by Martin Berry and E.B. Patterson, for appellant.
1. HOMICIDE. Negligence.
Negligence, as regards either civil or criminal case, must be predicated on action or nonaction accompanied by actual or implied knowledge of facts which make result not only probable, but one reasonably to be anticipated; mere possibility of result being insufficient.
2. HOMICIDE.
Evidence that accused gave six year old child three swallows of whiskey, that child died of alcoholic poisoning, and that smaller quantities of whisky would be necessary to endanger life of child than in case of adult held insufficient to sustain conviction of manslaughter under culpable negligence statute, in absence of expert testimony that three swallows of whisky is sufficient, as probability, to kill or seriously injure healthy six year old child (Code 1930, section 1002).
3. CRIMINAL LAW.
Judicial notice cannot be taken that three swallows of whisky is sufficient to cause, as probability, death of, or serious injury to, healthy six year old child.
Griffith, J., delivered the opinion of the court.
Appellant was indicted, tried, and convicted of a charge of manslaughter for the killing of a child between the age of six and seven years. The prosecution was based upon our culpable negligence statute, sec. 1002, Code 1930, and the specific proof which was attempted to be made was that appellant, the defendant, had given the child a sufficient quantity of whiskey to produce death, and that the child died as a result thereof. There is an absence of any suggestion that the defendant had any purpose or motive to seriously injure the child, or to injure him at all; the prosecution proceeded solely upon the issue of culpable negligence.
Laying aside the matter of culpability, and dealing with the lesser and simpler issue of negligence alone, it is elemental that, in order that a wrongdoer may be held liable, even in a civil action, for negligence, it is necessary to show that the injury complained of was the natural and probable result of the negligence; and as was more fully stated in Williams v. Lumpkin, 169 Miss. 146, 152, 152 So. 842, 844: "Actionable fault on the part of a defendant must be predicated on action or nonaction accompanied by knowledge actual or implied of the facts which make the result of his conduct not only a probable result but a result also which he should, in view of these facts, have reasonably anticipated." That a particular result was a possible result does not establish a case, either civil or criminal, as we have repeatedly held.
The evidence for the state pushed to its furthest extreme shows that, at most, the defendant gave the child three swallows of whiskey. There is not a word of proof in the record by any medical expert that three swallows of whiskey is sufficient, as a probability, to kill or seriously injure a healthy six year old child. The proof that the child died of alcoholic poison does not serve to answer that question for two reasons: First, that particular proof would establish only a possibility, not the probability; and second, there was undisputed evidence, and by a state witness, that the mother of the child on the same morning and within a short while had given the child whiskey, which fact was unknown to the defendant, and the fact is further developed in the circumstances that the child had had easy opportunity, through the omission of care by the mother, rather than of this defendant, to get whiskey from the same receptacle, within a short period thereafter without being observed by any other person in so doing.
The only proof offered in the matter of the quantity of whiskey in relation to the danger of death or serious injury therefrom was the single question asked the physician, and answered by him, to the effect that it would require a smaller quantity to endanger the life of a child than in the case of an adult, but how much as to either was not anywhere mentioned. The case, therefore, is left without substantial support upon an essential issue unless the court and jury could take judicial knowledge that three swallows of whiskey is sufficient to cause, as a probability, not as a possibility, the death of, or serious injury to, a healthy six year old child. That such an alleged fact is not within the field of judicial notice is obvious upon its mere statement, and requires no comment. But if comment be desired, the governing principles upon the subject of judicial knowledge and the practicable application thereof may be found in the recent case, Luckett v. Louisiana Oil Corporation et al. (Miss.), 158 So. 199.
There was a complete failure of substantial proof on an essential element in the case, and, therefore, however censurable he may be thought to be in an extrajudicial forum, the appellant was entitled to the peremptory charge requested by him.
Reversed, and appellant discharged.
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