Hiller v. State

• Decision Date: 04 June 1932
• Citation: 50 S.W.2d 225,164 Tenn. 388
• Parties: HILLER v. STATE.
• Court: Tennessee Supreme Court

50 S.W.2d 225

164 Tenn. 388

HILLER v. STATE.

Supreme Court of Tennessee.

June 4, 1932

Appeal from Circuit Court, Obion County; R. A. Elkins, Judge.

Aby Hiller was convicted of involuntary manslaughter, and he appeals.

Reversed.

Rice A Pierce, of Union City, and Robert P. Adams, of Trenton, for appellant.

W. F Barry, Jr., Asst. Atty. Gen., for the State.

CHAMBLISS J.

This was a conviction of involuntary manslaughter with a jail sentence of eleven months and twenty-nine days. In a collision between the Chevrolet car of plaintiff in error and the Ford car of J. W. Jonakin, the infant child of Mr Jonakin and Mrs. Jonakin, being carried in the arms of the mother at the time, met its death. The unfortunate tragic result of the collision naturally tends to render more passionate human judgment in weighing the conduct of the accused.

It must be borne in mind, as said by this court, in Copeland v. State, 154 Tenn. 11, 285 S.W. 565, 566, 49 A. L. R. 605, in disposing of a charge of criminal liability in a case of automobile accident killing, that: "Allowance must always be made for misadventure and accident, as distinguished from culpable negligence;" and that it is uniformly held that the kind of negligence required to impose criminal liability "must be of a higher degree than is required to establish negligence upon a mere civil issue."

The collision occurred in March, 1929, on the crest of a hill on a graveled highway, thirty-five feet wide, some six or seven miles east of the town of Obion, about 1:30 p. m. Mr. Jonakin had left Obion shortly before in his Ford roadster which he was driving. Hiller was a salesman traveling out of New Orleans, about fifty years of age, whose character for truth and veracity is shown to have been excellent. The state's theory is that he was driving at an excessive rate of speed and on his left-hand side of the road; and that Jonakin was driving very slowly on his extreme right-hand side, where he should be. The only eyewitnesses to the crash were Jonakin and his wife and Hiller, who puts his speed at about twenty-five miles, and who insists he approached the crest of the hill well over on his right side, and that first seeing Jonakin's car some thirty to thirty-five feet distant as they came over the hill, driving on Jonakin's left, to avoid a head-on collision, there being a ditch on his right, he swerved to the left in an effort to pass, and that at the same moment Jonakin, seeing Hiller's car, and realizing that he (Jonakin) was on his wrong side, quickly jerked his car to his right, striking Hiller's car about the right rear fender.

All parties testifying agree that after the collision the cars were in respective positions supporting Hiller's testimony. His car rested on or against an embankment on the north side of the road, which ran east and west, while Jonakin's car was turned toward the north, headed into the rear of Hiller's car. An apparently intelligent and disinterested witness named Watts, a stranger to all parties, who reached the scene shortly after the collision, prepared at the time a plat, or diagram, which is in the record, and which is approved by other witnesses, which not only clearly shows the positions of the cars afterwards, but also indicates clearly the course of both cars as they immediately approached each other. This testimony and drawing made at the time strongly sustains the testimony of Hiller that he was driving up the hill on his extreme right, the south side of the road, but that Jonakin was driving up the hill on his left, the same south side, and that both drivers turned to the north side of the road at about the same time, resulting in the collision.

The theory of the prosecution appears to rest on either (1) reckless negligence, shown by high speed and left-hand side driving, when approaching the crest of a hill, or (2) violation of the thirty-mile speed limit statute, repeal of which did not take effect until some thirty days later.

The only evidence that Hiller was exceeding the speed limit at the place of the meeting is that of Mr. and Mrs. Jonakin, who estimate his speed at from fifty to sixty miles an hour. Mr Jonakin's testimony on this point is unsatisfactory. He makes confusing and contradictory statements as to the distance at which he first saw Hiller's car approaching. In view of the grade of the road established in the record and the extent of the hill up the opposite sides of which the cars came, it is hardly possible that the occupants of either car could have seen the other until within a very short distance of each other. And, naturally, startled by seeing suddenly an...