Benson v. State

• Decision Date: 16 February 1948
• Docket Number: 4477
• Citation: 208 S.W.2d 767,212 Ark. 905
• Parties: Benson v. State
• Court: Arkansas Supreme Court

208 S.W.2d 767

212 Ark. 905

Benson v. State

No. 4477

Supreme Court of Arkansas

February 16, 1948

Rehearing Denied March 15, 1948.

Appeal from Crittenden Circuit Court; Zal B. Harrison, Judge.

Affirmed.

K T. Sutton, for appellant.

Guy E. Williams, Attorney General and Oscar E Ellis, Assistant Attorney General, for appellee.

OPINION

Minor W. Millwee, Justice.

The defendant was charged by information with the crime of involuntary manslaughter in the striking and killing of Bobby Wheeler with a motor truck, which was allegedly being recklessly and illegally operated by defendant while under the influence of intoxicating liquor. A jury found defendant guilty and fixed his punishment at 18 months in the penitentiary.

It is earnestly insisted that the evidence is legally insufficient to support the verdict and that the trial court, therefore, erred in refusing to direct a verdict of not guilty at defendant's request.

It appears from the testimony that defendant was driving his brother's 1 1/2-ton truck toward Earle, Arkansas, on the afternoon of August 21, 1947, when it struck or sideswiped a bicycle being ridden by Bobby Wheeler and Charles Barrett, 15 and 14 years of age, respectively. Bobby Wheeler was operating the bicycle and the other boy was riding on the bar that extends from the seat to that part of the frame which supports the handlebars. The collision occurred on Highway 64 about 1 1/2 miles west of Earle, Arkansas, where the road is straight. The paved surface of the road is approximately 25 feet wide with a gravel shoulder on each side about 3 1/2 feet wide.

Thurman McCay, who lives at Marion, Arkansas, testified that he was driving to Earle about 4:30 p. m. when he passed the truck being driven by defendant in the same direction. He observed the boys traveling on the bicycle toward Earle in front of defendant's truck. After passing the bicycle, he looked in his rearview mirror and saw the truck driven by defendant continue toward the bicycle which was traveling on the right edge of the blacktop pavement and saw one of the boys go up in the air. Defendant's truck passed McCay about 200 yards beyond the place of the collision as the latter stopped to return to the scene. On reaching the scene of the collision, he saw that the Wheeler boy was seriously injured and left a companion with the two boys while he drove to Earle to call an ambulance.

He overtook defendant's truck and blocked the entrance to a side road that defendant was about to enter near the schoolhouse at Earle. He told defendant that he had better stop his truck; that he had hit two boys and that he (McCay) thought defendant had killed one of them. Defendant replied, "What boys? I didn't see any boys." McCay then drove into Earle where he called an ambulance and, on returning to the scene of the accident, observed defendant's truck parked in front of the schoolhouse. Defendant did not go to the scene of the collision, but remained in the truck. Several persons who had gathered nearby testified that defendant sat in the truck "with his head down," or that he was "bent over," or "slumped over," in the truck.

Two officers, who arrived while defendant was still seated in his truck, testified that they detected the odor of alcohol on defendant's breath. When asked what he had been drinking, defendant replied that he "had a couple of bottles of beer back at Earle awhile ago." The officers detailed other conversations had with the defendant while he was being taken to jail at Marion, and concluded that he was under the influence of intoxicating liquor. Defendant did not have a driver's license. The truck was turned over to defendant's brother who was taking a vocational agricultural course for veterans at the Earle school.

Charles Barrett testified that the bicycle was traveling straight down the right edge of the road about 1 or 1 1/2 feet off the blacktop pavement when it was struck from the rear, and that there was no wobbling of the bicycle at the time of the collision. The bed on defendant's truck was wider than the cab and there was a fresh indentation on the right front of the bed, or cross piece that supports the bed.

The back of Bobby Wheeler's skull was fractured and his back and hips were badly mangled. He died about 30 minutes after reaching a hospital.

The defendant testified that he was visiting his brother, who lived about five miles north of Earle, at the time of the accident; that he delivered his brother to the Earle school about 1 p. m. and drove to Wynne, Arkansas, and returned to Earle about 4:30 p. m.; that he knew nothing of the collision until McCay told him about it; that he recalled seeing two boys on a bicycle somewhere on the road. When asked if he turned to the left in passing them, he stated that he did not, but that he already had plenty of room to pass. He denied being intoxicated, but stated that he drank three bottles of beer at the home of his brother on the morning of the collision. He did not sound his horn and was unable to explain why he did not go to the assistance of the boys when McCay told him that he had hit them.

Two witnesses testified on behalf of defendant that they were traveling in a truck from Earle shortly before the accident when they met the truck driven by defendant, and that the bicycle was wobbling in the road a few feet ahead of defendant's truck as they met it. This testimony was sharply disputed by Charles Barrett, Thurman McCay and his companion, who testified that they met no other vehicle at or near the time of the collision and that the bicycle was proceeding straight down the edge of the road when it was struck by the...