BEFORE ROY NOBLE LEE, C.J., SULLIVAN and GRIFFIN, JJ.
GRIFFIN, JUSTICE, FOR THE COURT:
We write in this case not because an opinion here will add to the body of law of this state; however, the general
public once again must be warned of the likelihood of severe punishment for driving an automobile while under the influence of alcohol.
Unlike manslaughter by way of culpable negligence, simple negligence to which we are all inclined may place otherwise good citizens in the penitentiary for five years. Prior to July 1, 1983, a driver involved in an accident while drinking was guilty of a felony only if another was killed as a result of his" culpable negligence "but on the effective date of Chapter 466, Laws of 1983, the same driver is guilty of a felony if the accident results in the death of another, or causes mutilation, disfigurement, permanent disability, or destroys the tongue, eye, lip, nose, or limb or member thereof and his negligence is no greater than" simple. "Some one is usually injured in an accident, and at least one, and often both drivers are negligent to some degree. Our warning is clear. Now on to the case at hand.
The facts are few. On November 17, 1984, in the early morning hours, Robert Brown, John Keith and Mark Pigg left Carthage along Highway 16 in a quest to hunt. As they traveled east in Keith's truck, the men encountered a stranded motorist whose car was parked on the shoulder of the road on the north side of the highway. They stopped to help and parked the truck along the same shoulder in front of the car, which was facing in a westerly direction. The flashers of both vehicles were turned on.
As the group worked on the car, Banks approached from the east travelling west at what was reportedly a high rate of speed. He swerved onto the shoulder and struck the rear of the stranded car, pushing it forward into the truck, and crushing the legs of Brown, who was looking under the hood of the crippled vehicle with his legs extended between the truck and the car.
Officer Donald Brown of the Mississippi Highway Safety Patrol arrived and accompanied Brown and Banks to the hospital. Brown testified that he detected the" aroma "of alcohol on Banks' breath. Brown awaited the report of the attending doctor on Banks' condition, and then took Banks to the Leake County jail where he administered a blood-alcohol test on an intoxilizer. Approximately two hours after the accident, Banks' blood-alcohol content registered at .11 percent. Officer Brown arrested Banks and charged him with DUI.
Banks was indicted under Miss. Code Ann. 60-11-30(4)
(Supp. 1987), which provides that
. . . every person who operates any motor vehicle in violation of the provisions of subsection (1) of this section *fn1 and who in a negligent manner causes the death of another or mutilates, disfigures, permanently disables or destroys the tongue, eye, lip, nose or any other limb or member of another shall be committed to the custody of the state department of corrections for a period of time not to exceed five (5) years.
After hearing all the evidence the jury returned a verdict of guilty as charged. Banks was sentenced to serve five (5) years in the Mississippi State Penitentiary, and given eleven days credit for jail time served.
Following motion for j.n.o.v. or, in the alternative, a new trial, which was overruled, ...