CONCURRING OPINION. Under this record the facts must be drawn out almost to the breaking point in order to say that there is enough here to escape the peremptory charge. In such a case the state's instructions ought to be required to be beyond criticism in any substantial respect, and particularly so when a conviction is sought under the culpable negligence statute. Experience has shown that under that statute juries are overinclined to convict on proof of what is in fact no more than simple negligence, and as a result there have been more reversals in this class of cases than perhaps in any other that comes before us.
In such a case the instructions should make it clear, and should be framed in such language that the average man on the jury will well understand it and without having to be an expert in legal terminology, that in order to support a conviction under the statute the negligence must be more than carelessness but must be of a degree so gross as to be tantamount to a wanton disregard of, or indifference to, consequences. Shows v. State,175 Miss. 604, 168 So. 862. The state's instruction quoted in the main opinion is drawn in such terms as to obscure rather than to make clear what is required in order that a conviction may be justified, remembering that such an instruction must be read and properly understood by laymen, not that it may possibly be understood by lawyers.
It is true that other instructions were given which explained in the abstract what was meant by the term *Page 833 culpable negligence, but this is of no avail for the reason that the quoted instruction undertook to collate certain facts as being enough, if believed beyond a reasonable doubt, to sustain a conviction and in such a case it is necessary that the instruction enumerate all essentials, and may not take resort to other instructions to cure errors or omissions. Walters v. State,176 Miss. 790, 170 So. 539; Yazoo M.V.R. Co. v. Hawkins,159 Miss. 775, 780, 132 So. 742.