BEFORE HAWKINS, P.J., ROBERTSON & SULLIVAN, JJ.
SULLIVAN, JUSTICE, FOR THE COURT:
Albert B. Stever was convicted of manslaughter by the Circuit Court of the First Judicial District of Harrison County, Mississippi. The conviction was the result of an automobile accident. Judge Leslie B. Grant sentenced Stever to a term of two (2) years in the custody of the Mississippi Department of Corrections.
Stever assigns three errors on this appeal:
I. The lower court erred in refusing to grant judgment of acquittal at the close of the State's case, at the close of the appellant's case, and after verdict of the jury;
II. The lower court erred in admitting into evidence the BAC test performed upon appellant, who was not under arrest; and
III. The lower court erred in refusing to grant a mistrial when it was discovered that nine (9) jurors were guilty of misconduct.
The collision occurred on December 4, 1981, between the hours of 8:30 and 9:00 o'clock p.m., between a pickup
truck driven by Stever and a Volkswagen driven by Teresa Marie Zitano. Ms. Zitano was killed. The accident occurred just north of the Kremer Bridge on Lorraine Road.
Lorraine Road is a heavily traveled two-lane asphalt roadway, which accesses Interstate 10 and U. S. Highway 49. On the night of the collision the centerline was difficult to see because it was badly faded and the lighting in the area was poor.
Stever admitted to drinking two "ponies" of beer and later in the day a beer and a half. Four empty beer cans were found in his truck. The prosecution evidence was that Stever's breath smelled of beer, that he was belligerent and that his blood alcohol content was .217.
Stever testified that he was not drunk but fully alert at the time of the accident. He was driving north on Lorraine Road when the Volkswagen suddenly crossed into his lane of traffic according to his testimony. Mrs. Jarrell, a passenger in the vehicle behind the Zitano Volkswagen, testified that she saw the headlights of the truck suddenly go into the south lane in which the Volkswagen was traveling. Mrs. Jarrell however later testified that she only heard the accident and did not see it.
The left front of the Stever truck hit the left front of the Volkswagen. The impact folded the left front wheel of the truck locking it in position. The truck came to rest on the west shoulder of the road pointed back in a southerly direction. The Volkswagen also came to rest partially on the west shoulder and headed in a general southerly direction. Skid marks were found which began approximately two feet inside the south bound lane and stopped at the left front wheel of the truck.
Douglas Jarrell testified that the Volkswagen was in front of the car in which Mrs. Jarrell was riding, and was also traveling south on Lorraine Road. The Volkswagen was about three car lengths in front of the Jarrell vehicle and moving at about 35 miles per hour. Mr. Jarrell did not recall seeing the Volkswagen travel into the north bound lane and he did not notice Stever's truck until after the impact.
DID THE LOWER COURT ERR IN REFUSING TO GRANT A JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE, AT THE CLOSE OF STEVER'S CASE, ...