¶1 Dissenting Opinion.
¶2 delivered a dissenting opinion.
¶3 The State made the following case, which was amply-supported by the evidence: Deaton and the deceased, employes of the State Highway Department, were engaged in sprinkling the east and west graveled highway entering Iuka. They were using a public highway truck which was properly lighted both in the front and rear, and, in addition, the deceased was following along with a flashlight warning the traveling public of the presence of the truck. The highway is twenty-one feet wide, the standard width, and, in addition, it has on each side five-foot shoulders. The width, therefore, was .ample for the passage of motor vehicles of any size in common use. At the time of the collision and injury, the truck was going west at a speed of from three to four miles an hour. It was on its right-hand side of the highway. Appellant and his traveling companion, Pruitt, were going in the same direction in a pick-up truck. Appellant was driving; they were going at a rate of from fifty-five to sixty miles an hour. It was eleven o’clock at night. They knew they had struck the deceased but made no inquiry as to the result, and continued driving on. Appellant and his companion Pruitt had been drinking gin, homebrew, and beer all that day. The sheriff of the county arrested appellant a short while after the homicide. He testified that appellant was drinking heavily. Appellant’s companion, Pruitt, testified that appellant was half drunk.
¶4 It is at once manifest that this evidence made a case of homicide as a result of culpable negligence.
¶5 There was no harmful error in the instructions for the state. In several of them culpable negligence was described not only correctly but in clear terms. The reversal of the judgment on account of the giving of In *776 struction 3 for the state is, in my opinion, groundless. It did not in the remotest degree authorize the jury to find the appellant guilty on the ground alone that he was intoxicated. That part of the instruction is in this language: “at a time when he was under the influence of intoxicating liquor, and in a manner constituting culpable negligence as defined in State Instruction No. 2.” (Emphasis mine.) In short, the jury were told that if the evidence showed beyond a reasonable doubt that appellant operated the truck when he was under the influence of intoxicating liquor ‘ ‘ and in a manner constituting culpable negligence,” they would be authorized to find him guilty. It seems that in plain language the jury were told that intoxication alone was not sufficient to authorize a verdict of guilty.