Bowen v. State

• Decision Date: 09 October 1911
• Citation: 140 S.W. 28
• Parties: BOWEN v. STATE.
• Court: Arkansas Supreme Court

140 S.W. 28

BOWEN v. STATE.

Supreme Court of Arkansas.

October 9, 1911.

Appeal from Circuit Court, Pulaski County; Robt. J. Lea, Judge.

Otto Bowen was convicted of involuntary manslaughter, and he appeals. Affirmed.

The appellant was indicted for the crime of involuntary manslaughter; the indictment charging that he did unlawfully, willfully, feloniously, carelessly, recklessly, wantonly, and negligently kill Ethel Sherill, by then and there striking her with an automobile, he (the appellant) being then and there running, driving and guiding said automobile in an unlawful, willful, careless, reckless, wanton, and negligent manner, etc. The appellant was tried and convicted and his punishment fixed at ten months imprisonment in the state penitentiary. His motion for new trial was overruled, and he duly prosecutes this appeal.

Instructions No. 3 and No. 5, referred to in the opinion, are as follows:

"No. 3. You are instructed that if the death charged to the defendant in the indictment was occasioned by the negligence of the deceased for her own safety, if she was at an age of discretion to know the danger of such a vehicle as an automobile, then and in that event the jury must find the defendant discovered her danger, or by proper care could have discovered it, while acting lawfully himself, and, after discovering her, wantonly, recklessly, and feloniously made no effort to avoid striking her, in order to justify a conviction."

"No. 5. If you find from the evidence that deceased was of sufficient age and discretion to understand and appreciate the danger of a collision with an automobile in the street, and find that the collision which resulted in her death was caused by her suddenly and unexpectedly, to the defendant, leaving the sidewalk and running into the street between crossings where the defendant had no reason for expecting her, and in doing so ran into defendant's machine at a place and time that prevented his seeing her, and prevented his making an effort to avoid striking her, then defendant is not guilty of manslaughter."

Bradshaw, Rhoton & Helm, for appellant.

Hal L. Norwood, Atty. Gen., and Wm. H. Rector, Asst. Atty. Gen., for the State.

The doctrine of contributory negligence is unknown to the criminal law. 3 Cox C. C. 439; 12 Cox C. C. 355; 12 E. C. L. 191; 9 Cox C. C. 55; 11 Cox C. C. 544; 2 Car. & K. 230; 4 F. & F. 504; Commonwealth v. Railway Co., 134 Mass. 211; Belk v. People, 125 Ill. 584, 17 N. E. 744; Brown v. State (Tex. Cr. App.) 50 S. W. 354; Wharton on Homicide, § 482; 1 Bishop's Criminal Law, §§ 256-263; 11 Bishop's Criminal Law, § 662 (2); Thompson on Negligence (White Sup.) § 1540.

WOOD, J. (after stating the facts as above).

I. Over the objection of appellant the court permitted a witness to testify, in response to a question as to whether the automobile was going fast or not, as follows: "I remarked to this fellow Vaughan; I said: `Gee, look at that thing go.'" And further to testify that he judged the machine was going about 30 miles an hour. Another witness, over the objection of appellant, was permitted to testify, in answer to a question as to whether the automobile was going at an unusual rate of speed or not, as follows: "Unusually fast." And further, in answer to the question, "What was his (defendant's) manner?" as follows: "Personally speaking, I don't think I would use quite as careless a manner as he used here." Other witnesses, over the objection of appellant, in answer to questions as to whether the automobile was going at an unusual rate of speed or not, testified as follows: "I think so; yes." And again: "Yes, it was unusual." The appellant contends that this testimony was incompetent, for the reason that the witnesses had not shown that they had any knowledge of what the usual rate of speed of an automobile is, or that their experience would enable them to judge of the rate of speed of an automobile.

The killing occurred on the streets of Little Rock, where automobiles are constantly passing. Transportation by automobile may be taken as a matter of common knowledge and general information. It does not require the knowledge of an expert to determine whether an automobile is moving at a usual or unusual rate of speed. Any person of ordinary understanding and common observation is competent to speak upon that question. In the case of Railway Company v. Thomason, 59 Ark. 143, 26 S. W. 598, this court said: "The witness was testifying to matters of fact which he says he had observed, and about which men of common understanding might be informed upon observation. Any person cognizant of the facts upon which he bases his judgment may give his opinion on questions of identity, size, weight, distance, and time. Such questions are open to all men of ordinary information." Again: "We can see nothing in the distance or range of the reflection of light by the headlight of an engine calling for the exercise of peculiar skill, the possession of professional knowledge, or requiring any peculiar habit of study in order to qualify a person to understand it, and to testify about it intelligently." The same may be said as to the speed of an automobile. See, also, Traction Company v. Nelson, 66 Ark. 498, 52 S. W. 7; Miller v. State, 94 Ark. 544, 128 S. W. 353; Railway Company v. Brown, 62 Ark. 254, 35 S. W. 225.

In State v. Watson, 216 Mo. 420, 115 S. W. 1011, there was a conviction for manslaughter; the charge being similar to that under consideration. Several witnesses, who saw the automobile running, testified that defendant was driving the automobile at a high rate of speed. The defendant in that case objected to the testimony, contending that it was error to permit the witnesses "who knew nothing about the operation of automobiles to give their opinions as to the rate of speed at which the automobile being operated by the defendant was running just before the deceased was struck." The court in that case said: "The rate of speed at which an automobile is running is not a matter exclusively for the testimony of experts. If that were true, then, as has been intimated by this court, it would be a matter of impossibility for those injured by the running of vehicles, either automobiles, street cars, or regular railroad cars, to always have experts at hand to show what rate of speed was being made. A holding of that character would be wholly impracticable and do a great injustice to many persons who had been negligently injured by vehicles of the character indicated running at an excessive rate of speed. At last, the only reasonable settlement of that question is to hold that witnesses who at least know what an automobile is and have seen them operated might give their opinions as to the rate of speed. As to the weight to which such opinions are entitled is a matter entirely for the jury." See, also, 3 Wigmore on Evidence, § 1977; Commonwealth v. Sturtevant, 117 Mass. 122, 19 Am. Rep. 401; State v. Welford, 29 R. I. 450, 72 Atl. 396.

II. The court asked witness Clem Schaer the following question: "Do you think it is right for a man to run a car on the street in such condition that he has not got control of it?" And the witness answered as follows: "You have...