ON PETITION FOR REHEARING
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
The petition for rehearing filed in this cause is granted, the original opinion withdrawn.
Gerald C. Craig appeals from this conviction in the circuit court of the First Judicial District of Hinds County of manslaughter by culpable negligence in the operation of a motor vehicle. Because the proof in this case shows Craig clearly guilty of the lesser included offense of negligently
causing a death while he was under the influence of intoxicating liquor, Miss. Code Ann. 63-11-30 (1), (4), but does not rise to the degree of culpable negligence required for a manslaughter conviction, Miss. Code Ann. 97-3-47, we affirm his conviction of the former and remand solely for the purpose of proper sentencing under Miss. Code Ann. 63-11-30 (4). FACTS
Robinson Road south of State Highway 18 runs in a north-south direction and is two-lane (except at widened intersections). The paved surface is 22 feet wide.
On Tuesday evening, just before 8:00 p.m. on September 18, 1984 Ray Wilson was driving north on Robinson Road with his son Randall L. (Randy) Wilson headed to the Metrocenter to purchase a pair of shoes for Randy. The night was clear. Just north of McDowell Road they passed a Pizza Hut where a motorcycle, waiting for them to pass, pulled into the street behind them. Randy had some familiarity with motorcycles, and observed it was a Yamaha. Both Randy and Wilson observed that the headlight of the motorcycle was on, and the driver was wearing a helmet. Wilson was driving 35-40 miles per hour, the motorcycle trailing the Wilson car. Just after the vehicles had proceeded north through the Raymond Road intersection, at the Baldwin Funeral Home and St. Paul Presbyterian Church, the motorcycle accelerated and passed Wilson's car. At some point as they proceeded north, either along the road or at the hospital road intersection, a car got between the Wilson car and the motorcycle, and the three vehicles proceeded north along Robinson Road. The Wilsons were able to see both the preceding automobile and the motorcycle. At Greenway Drive, the preceding automobile turned off Robinson Road, and the Wilsons were able to see the motorcycle proceeding north over the bridge across Interstate 20.
For only a matter of seconds at the most, the motorcycle, as it went beyond the crest of the bridge, was out of the Wilsons' sight.
When the Wilsons reached the crest of the bridge and proceeded north they could see the motorcycle laying on its side, and - as Wilson observed - the dust from its rear wheel floating. The headlight on the motorcycle was on. They also saw a blue Ford pickup truck headed diagonally across the center line.
Wilson stopped his car, and the two of them got out.
They did not see the driver either of the motorcycle or the truck. Randy walked toward a house on the right (east) side of the street, and met Craig coming out on the porch.
A. I asked him where the guy on the motorcycle was, and I didn't really get an answer. And when we got back to the motorcycle I asked where the guy on the motorcycle was because I'd imagined maybe it was a stolen motorcycle and the guy got up and ran off or something. And the guy pointed back down to the motorcycle and kind of laughed and said," I don't know where the guy is. "
Randy again asked Craig about the rider of the motorcycle," And he kind of laughed and shrugged his shoulders and pointed at the motorcycle and said, `That's all I see. "' (Vol. II, p. 227)
Randy had no flashlight, but with a cigarette lighter started searching for the motorcycle rider. In a ditch just north of the driveway he found Timothy L. Rooker, who was dying. Craig did not assist in searching for Rooker. As far as the accident was concerned, Craig stated that he never saw the driver of the motorcycle, and did not see the motorcycle until he felt its impact. Wilson noticed Craig's speech was slow.
Jackson police officers arrived at the scene a few minutes later. The damage to the motorcycle was on the left side at the gas tank and engine. The left front fender of the pickup was bent and the left headlight knocked out.
Craig was indicted on November 7, 1984, for feloniously killing Rooker by culpable negligence in the operation of a motor vehicle.
All witnesses for the State testified that the pickup was well over into the northbound lane of traffic. State witnesses also testified that the motorcycle was on the east shoulder in the northbound lane, east of the pickup. A review of the scene showed the motorcycle laid down approximately 35 feet of skidmark before the point of impact, shown by a gouge mark on the asphalt. ...