BEFORE PATTERSON, C.J., HAWKINS AND ROBERTSON, JJ.
ROBERTSON, JUSTICE, FOR THE COURT:
Drunken drivers destroy life, limb and property with callous indifference. Our citizenry is outraged. That outrage without doubt played a substantial role in Kenneth Edward Dickerson's conviction of the manslaughter of Edward David Russell, a conviction which for the reasons explained below cannot stand.
In the early morning hours of November 21, 1980, during the dark of night Dickerson was proceeding easterly on Pass Road, a four lane east-west thoroughfare connecting Biloxi and Gulfport. Though he was under the influence of intoxicating liquors, Dickerson was in a lawful lane of traffic. At most he was slightly exceeding the speed
limit, when he suddenly came upon an unlighted unmarked vehicle blocking the road ahead of him. Dickerson applied his brakes immediately but skidded into the car and struck Edward David Russell who was standing nearby, killing him instantly.
It is true that Dickerson had been drinking earlier that evening - he had just gotten back into town after a long tour of duty offshore. It is not true, however, that Dickerson's conduct and particularly his intoxication evidenced culpable negligence sufficient to uphold the jury's verdict of guilty of manslaughter. Whatever sins Dickerson may have committed on the evening in question, manslaughter was not among them.
On March 16, 1981, Dickerson was charged in an indictment returned by the Harrison County Grand Jury with the manslaughter of Edward David Russell. In due course he was put to trial, and on November 23, 1981, the jury found him guilty as charged.
At the conclusion of the State's case Dickerson moved for a directed verdict of acquittal. The motion was denied. Then at the conclusion of all of the evidence, Dickerson requested a peremptory instruction in his favor. The instruction was also denied. Following the return of the jury's verdict, Dickerson filed a timely motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. One of the bases of that motion was Dickerson's assertion that as a matter of law the State had failed to prove him guilty of manslaughter. This motion was overruled and the instant appeal has ensued.
On this appeal, Dickerson has assigned three points. Two of those - alleged improper final argument by the State's attorney and alleged improper admission of inflammatory photographs of the deceased - would, if credited here, result in a new trial. The third - that as a matter of law the State's proof fails to establish that Dickerson was guilty of manslaughter - is dispositive. Because we find this assignment well taken, the others are rendered moot.
Manslaughter has been made an offense against the peace and dignity of the state by several acts of the legislature. We are here concerned with only one
of these, Miss. Code (1972) 97-3-47, which provides as follows:
Every other killing of a human being by the act, procurement or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter.
This statute has been authoritatively construed in Smith v. State, 197 Miss. 802, 20 So. 2d 701 (1945), a case involving alleged manslaughter with an automobile, to require that, before the ...