Herndon v. State

• Decision Date: 26 November 1927
• Docket Number: A-5915.
• Citation: 261 P. 378,38 Okla.Crim. 338
• Parties: HERNDON v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

261 P. 378

38 Okla.Crim. 338

HERNDON v. STATE.

No. A-5915.

Court of Criminal Appeals of Oklahoma

November 26, 1927

Syllabus by the Court.

In prosecution of automobile driver for manslaughter, committed by culpable negligence in driving, evidence held sufficient to sustain conviction of manslaughter in the second degree.

Culpable negligence which will render killing a person manslaughter is the omission, on the part of the person doing some act, which a reasonable and prudent man would do under like circumstances, or the doing of some act which such a man under like circumstances would not do, by reason of which another person is endangered in life or bodily safety.

Appeal from District Court, Carter County; Asa E. Walden, Judge.

E. D Herndon was convicted of manslaughter in the second degree and he appeals. Affirmed.

See also, 234 P. 1116.

Sigler & Jackson, of Ardmore, for plaintiff in error.

George F. Short, Atty. Gen., and Leverett Edwards, Asst. Atty. Gen for the State.

DOYLE P.J.

The appellant, E. D. Herndon, was convicted of manslaughter in the second degree and his punishment fixed at confinement in the penitentiary for a term of four years.

The information, omitting formal parts, charges that in Carter county, March 21, 1925, "the above named defendant, E. D. (Doty) Herndon, did, then and there willfully, unlawfully and feloniously with a premeditated design to effect the death of Billie Bright, and by acts imminently dangerous to others and evincing a depraved mind, regardless of human life, operate, drive, and propel an automobile against, upon, and over the person and body of the said Billie Bright with such force as to throw, hurl and force the said Billie Bright upon and against the street and pavement of the city of Ardmore, Oklahoma, then and there and thereby inflicting upon the head and body of the said Billie Bright certain mortal wounds of which the said Billie Bright then and there immediately did die; that the said E. D. (Doty) Herndon, in manner and form as aforesaid unlawfully and feloniously did, then, and there kill and murder the said Billie Bright contrary to," etc.

The main, if not the only, question on this appeal is whether the evidence was sufficient to sustain the verdict.

It is obvious that appellant was convicted of the crime defined in the Penal Code as follows:

"Any killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder, nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree." Section 1745, C. S. 1921.

It appears that Douglas boulevard, in the city of Ardmore, is an avenue running north and south, with a parkway in the middle with driveways on each side about 18 feet wide. The home of Ernest Bright is situated on the east side of this street, facing west, and across the boulevard is the home of J. W. Skipworth. On the day of the tragedy which resulted in this prosecution, Billie Bright, age four years, was playing near the Skipworth home. Mrs. Bright, his mother, called to him from her front porch, and the child started to cross the street, when appellant came driving down Douglas boulevard at a speed, as testified to by the witnesses for the state, of between 25 and 35 miles an hour. The automobile driven by appellant struck the child, killing him almost instantly. Appellant did not stop, but drove on.

Mrs. Ernest Bright testified that she was standing on her front porch; that when struck by appellant's car her child was not more than a foot from the curbing.

The...