Stacy v. State

• Decision Date: 18 November 1957
• Docket Number: No. 4884,4884
• Citation: 228 Ark. 260,306 S.W.2d 852
• Parties: Alvin Lee STACY and Elmer Rusher, Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 852

306 S.W.2d 852

228 Ark. 260

Alvin Lee STACY and Elmer Rusher, Appellants, v. STATE of Arkansas, Appellee.

No. 4884.

Supreme Court of Arkansas.

Nov. 18, 1957.

Eugene Coffelt, Bentonville, Claude Duty and Jeff Duty, Rogers, for appellants.

Bruce Bennett, Atty. Gen., Thorp Thomas, Asst. Atty. Gen., for appellee.

MILLWEE, Justice.

The defendants, Alvin Stacy and Elmer Rusher, were jointly charged, tried and convicted of the crime of involuntary manslaughter in the killing of W. L. Miser on January 9, 1957. Punishment was fixed by the jury at three years in the penitentiary with a recommendation that the sentences be suspended. The trial court suspended two years of Stacy's sentence and one year of Rusher's sentence and entered judgment accordingly. Both have appealed.

Defendants first challenge the sufficiency of the evidence to support the verdict and judgment. We briefly review it in the light most favorable to the State, as we must, in determining this issue. The killing of W. L. Miser arose out of a collision which occurred on Highway 12 about 2 1/2 miles east of Rogers, Arkansas, between a pick-up truck driven by Miser and a loaded log truck belonging to the defendant, Elmer Rusher, and being operated by the defendant, Alvin Stacy.

On the morning of January 9, 1957, Rusher drove to his sawmill near Rogers with Gene Bond, an employee. While they were preparing for the day's operations Alvin Stacy, another employee who lived near the mill, came and borrowed Rusher's chain saw and truck to use in cutting and hauling some firewood for his own use. Stacy returned to the mill later in the morning. Rusher had a pint of liquor which he and Stacy proceeded to drink. Rusher then sent Stacy and Bond to a tract of timber to cut logs where they arrived about 1:00 p. m. Rusher followed later in his car. Young Bond considered Stacy too drunk to drive and admonished him about his fast driving on the way to the log woods. While they were cutting logs Stacy was so intoxicated that he fell with the chain saw two or three times.

Rusher left the log woods about 2:00 p. m. for the Missouri state line where he purchased a half pint of liquor and several cans of beer. Upon his return to the log woods he gave Stacy the liquor and drank some of the beer himself. The three men then loaded the logs on the truck. Bond suggested that Rusher let him drive the log truck to the sawmill but Stacy was directed to do so. Rusher and Bond followed in Rusher's car with Bond driving. As they followed close behind the truck on a dirt road to Highway 12 Bond warned Rusher that Stacy was driving 'a little too fast' but Rusher replied that Stacy was a good driver and 'would make it all right'. After they reached Highway 12 Stacy proceeded to drive fast on curves and on the wrong side of the road at times with one of the logs protruding several feet from the left side of the truck. While driving in this manner about 5 p. m. with Rusher and Bond about two car lengths behind, the log truck met the pick-up truck driven by Miser who drove partly on the right shoulder of the road in an effort to avoid a collision. The protruding log struck and demolished the cab of the pick-up, striking Miser in the face and killing him instantly. Neither Stacy nor the other two men stopped after the collision although Bond suggested they do so. Stacy was still intoxicated when he and Rusher were taken into custody that night.

The foregoing proof was clearly sufficient to sustain the verdict against Stacy. But Rusher earnestly insists that a verdict should have been directed in his favor since he was neither in actual control of the log truck nor riding in it with Stacy at the time of the collision. He contends the owner of a vehicle being driven by another cannot be convicted as an accessory to manslaughter unless he is present in the vehicle at the time the offense is committed. In Fitzhugh v. State, 207 Ark. 117, 179 S.W.2d 173, 174, we approved this statement from 26 Am.Jur., Homicide, Sec. 59: 'Manslaughter may result from the doing of an unlawful act or as the result of gross negligence in the performance of an act otherwise lawful, consequently, one who procures another to use a dangerous agency which causes death may be guilty as accessory before the fact.' Also in Lewis v. State, 220 Ark. 914, 251 S.W.2d 490, 494, we said: 'It is true that the authorities are divided on the question as to whether there can be an accessory before the fact to manslaughter, some courts holding that there cannot be accessories before the fact to voluntary manslaughter while there can be such accessories in cases of involuntary manslaughter. 40 C.J.S. Homicide, § 9 b. We think the rule adopted in the Fitzhugh case is supported by reason and the weight of authority.'

In the last case cited we also approved by following statement by the Nevada court in Ex parte Liotard, 47 Nev. 169, 217 P. 960, 30 A.L.R. 63, where the killing occurred while the defendant-owner was riding on the running board of the car being driven by his drunken co-defendant: 'No one would contend that the owner of a car would not be liable for injuries resulting from his operating it while intoxicated. How, then, can be escape the consequence when he sits by and permits another, who is intoxicated, to operate it? * * * One who...