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Wilkerson v. State11/12/1998
al penalty than manslaughter and could under certain circumstances have been considered a lesser-included-offense to manslaughter there is nothing which compels it to retain that status. It is now and has always been a free standing criminal offense. The fact that it now carries a criminal sanction greater than that for manslaughter creates no constitutional infirmity. Thus, appellant's assignment of error has no merit.
V.
. In his Fourth assignment of error, Wilkerson argues that the trial court erred in refusing jury instructions D-1, D-2, D-4, D-6, D-9, and D-10. We handle each instruction separately.
. "In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no inJustice, no reversible error will be found." Coleman v. State, 697 So. 2d 777, 782 (Miss. 1997) (quoting Collins v. State, 691 So. 2d 918 (Miss. 1997)).
. Wilkerson's contention that the trial court refused to grant his jury instructions D-1 and D-2, requests for directed verdicts of acquittal, will be addressed in section VI of this opinion. D-1 instructed the jury to find Wilkerson not guilty, while D-2 instructed the jury to find Wilkerson not guilty of driving while under the influence negligently causing the death of another.
a.
. Wilkerson maintains that Instruction D-4 is necessary for the jury to be properly instructed regarding the elements of the crime at issue. Jury Instruction D-4 reads:
"Negligence is the failure to use reasonable care. Reasonable care is that degree of which a reasonably careful person would use under like or similar circumstances. Negligence may consist either of doing something that a reasonably careful person would not do under similar circumstances, or of failing to do something that a reasonably careful person would do under like or similar circumstances.
You are instructed that the Defendant is not liable for all injuries that flow from his negligence, but only for those that could have been reasonably foreseen and anticipated. The injuries suffered by victim must result from a chain of a natural and unbroken sequence from Defendant's negligent act. However, the Defendant is not liable for damages which are remote or collateral, or which result from a remote, improbable or extraordinary occurrence, although such occurrence is within the range of possibilities flowing from Defendant's negligent act. An element, or test, of proximate cause is that an ordinarily prudent man should reasonably have foreseen that some injury might probably occur as a result of this negligence. It is not necessary to foresee the particular injury, the particular manner of the injury, or the extent of the injury. In order to be a proximate cause, the negligence of Defendant must be a substantial factor in producing the victim's death. If the victim would have been injured even if the Defendant had not been negligent, the Defendant's negligence is not a substantial factor and not a proximate cause."
. The trial court gave Instruction 9 defining negligence, which is identical to paragraph one of D-4. The balance of D-4 spoke to the issue of proximate cause. While no other instruction spoke to this issue the failing is not fatal to the verdict here. First, counsel made no specific reference to proximate cause and failed to attack the state's instructions for the absence of a requirement that proximate cause be found. Perhaps this is so because there was no real issue of proximate cause in this case. Clearly, the victim died as a result of the accident and t
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