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THE STATE v. MOUZON ET AL.

August 27, 1957

THE STATE, RESPONDENT,
v.
BEN MOUZON AND JOHN BRYANT, JR., DEFENDANTS, OF WHOM BEN MOUZON IS APPELLANT.



The opinion of the court was delivered by: Oxner, Justice.


   August 27, 1957.
Between 7:00 and 8:00 P.M. on Saturday, June 2, 1956, Mrs. Margaret Allen Coker, a pedestrian, was struck and killed by a 1955 Chevrolet automobile. Ben Mouzon and John Bryant, Jr., both Negroes, were riding in the front seat, but there is a dispute as to which one was driving. Both were indicted. Ben Mouzon was convicted of murder with recommendation to mercy and given a life sentence. John Bryant, Jr., was convicted of accessory after the fact of murder and sentenced to imprisonment for a term of five years. Only Ben Mouzon has appealed.

Appellant contends (1) that the evidence is insufficient to support the verdict; (2) that there was error in refusing a motion for a change of venue; (3) that an alleged confession by him was improperly admitted; (4) that the Court erred in allowing the testimony of his co-defendant, John Bryant, Jr., to be considered against him; (5) that the Court erred in permitting the jury to separate overnight on the last day of the trial; and (6) that there were certain erroneous instructions. These questions will be considered in the order stated.

The homicide occurred in the village of Alcolu, Clarendon County. The highway running through Alcolu is surface treated. The traveled portion is approximately 20 feet wide. In front of the business places the shoulders were also surface treated. At the point of the accident, the road was straight and there was nothing to obstruct the vision of a motorist for a distance of 500 feet or more in either direction. The testimony of two eyewitnesses was to the following effect:

The deceased, who lived in Alcolu, proceeded to cross the highway at an angle of about 45 degrees. When about halfway across she apparently noticed the Chevrolet car approaching. These witnesses estimated its speed at 70 to 80 miles an hour. The deceased then ran across the remainder of the highway and was struck by the Chevrolet just as she had gotten off the traveled portion of the highway and onto the shoulder. They observed no effort on the part of the driver to avoid striking her. After the impact the driver almost lost control, applied his brakes and slowed down to about 20 miles an hour. He then looked back but never stopped. It was the opinion of these witnesses that the accident happened around 7:00 P.M. They said it was not dark enough to require a motorist to use his lights. At the time of the accident there was no other traffic on this highway. The speed limit in Alcolu is 35 miles an hour.

The sheriff and a highway patrolman went immediately to the scene of the accident. They thought that it occurred around 7:45 P.M. The body of the deceased was found about 71 feet beyond the point of impact. These two officers saw fresh "brake" marks on the right side of the road, extending approximately 118 feet up to the point of the accident. It was their opinion that the driver applied his brakes for this distance before striking the deceased.

An hour or two after the accident other officers found the Chevrolet car abandoned on a highway in Sumter County near the homes of Mouzon and Bryant. The right front fender was "crumpled" and right headlight broken. Shortly thereafter both Mouzon and Bryant were arrested at their respective homes. About 9:30 P.M. the Sheriff of Clarendon County took these two men to the jail at Manning. Both appeared to be under the influence of intoxicants, Mouzon more so than Bryant. In talking to the sheriff, each claimed that the other was driving the car at the time of the accident. On the afternoon of the next day, Sunday, the sheriff placed these men together in a cell and left them for about an hour and a half. When they were taken out, Mouzon said that he would "take the blame." The sheriff warned him that he should not do so unless he was driving. According to the sheriff, Mouzon then stated that he was driving when the deceased was killed; that he was traveling about 45 miles an hour and did not stop because he was frightened. Throughout the interrogation Bryant denied that he was the driver when the accident occurred but admitted that he took over the wheel when they reached a point about a mile and a half from the scene.

We now turn to the testimony of Mouzon and Bryant. They were in agreement that the Chevrolet was owned by Mouzon's brother who had loaned it to him on the day of the accident; that during the early part of the afternoon, Mouzon picked up Bryant; that the two then drove in and around Sumter, after which they went to Manning and called at numerous places; and that each drove at various times during the afternoon. They disagreed, however, as to the extent of their drinking. Mouzon said he became highly intoxicated while Bryant contended that they only consumed a small amount of beer and whiskey.

Mouzon, who is about 20 years of age, testified that at around 7:30 P.M. he went to sleep in the car with Bryant driving; that he knew nothing of the accident but does remember being awakened by a jolt, after which he went back to sleep; that a short distance from his home, Bryant awakened him and said that the car had stopped; and that with the assistance of Bryant, he walked to his home where he was shortly thereafter arrested and taken to the jail, along with Bryant. He further testified that when they were questioned by the sheriff that night and the next morning, each denied being the driver; that on Sunday afternoon the sheriff placed both of them together in a cell and told them "to make up your minds" as to who was driving; that Bryant then sought to induce him to assume the responsibility, stating that he had no driver's license and was already in trouble for killing one person and that the insurance would be no good if he (Bryant) was driving; and that about this time the sheriff, who apparently had overheard the conversation, walked up to the cell and told Bryant that if he was in trouble, "don't try to get this little boy in trouble" and told him (Mouzon) that he did not have to take the blame if he was not the driver. He said he then told the sheriff, "I will just take the blame."

Several witnesses for Mouzon corroborated his testimony that he was drunk both before leaving Manning and when placed in jail. One witness further testified that Bryant admitted to him at the jail that he was driving the car.

Bryant, who is 25 years old, gave the following version of the occurrence:

In other portions of his testimony he stated that Mouzon was traveling at a speed of 70 or 80 miles an hour and did not apply his brakes before striking the deceased. He admitted that about a mile and a half from the scene of the accident they stopped and he took over the wheel.

A witness for Bryant testified that at the jail on Sunday afternoon after the accident, Mouzon admitted to his mother that he was the one who was driving.

It will be seen from the foregoing review of the testimony that there is a sharp conflict as to which of these men was driving at the time of the accident. Implicit in the verdict of the jury is a finding that it was Mouzon. It may be reasonably inferred from the testimony that while highly intoxicated, he was driving 70 or 80 miles an hour in a 35 mile speed zone; that he ignored repeated requests by Bryant to slow down and drive carefully; that he made no effort to avoid the accident; and that knowing that he had hit the deceased, he failed to stop. While it is true that the officers said there were marks indicating the application of brakes before the point of impact, there is other testimony warranting a different conclusion.

We think the evidence was sufficient to sustain a verdict of murder. The conduct of the driver was such as to imperil human life. Although it may be fairly assumed there was no actual intent to kill or injure another, there is evidence of such recklessness and wantonness as to indicate a ...


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