State v. Adams

• Decision Date: 14 November 1949
• Docket Number: 41398
• Parties: State of Missouri, Respondent, v. Gordon B. Adams, Appellant
• Court: Missouri Supreme Court

224 S.W.2d 54

359 Mo. 845

State of Missouri, Respondent, v. Gordon B. Adams, Appellant

No. 41398

Supreme Court of Missouri

November 14, 1949

Appeal from Jackson Circuit Court; Hon. Ray G. Cowan Judge.

Reversed and remanded.

SYLLABUS

Defendant's conviction of manslaughter by culpable negligence was supported by sufficient evidence but is reversed and remanded because of prejudicial testimony. Defendant approached Highway 40 from the right and ran into the side of the vehicle driven by the deceased, after failing to observe a stop sign. Sec. 8385(L) R.S. 1939, the right of way statute, has no application, but failure to observe the stop sign is not negligence per se, the right to proceed depending on traffic conditions. Testimony by a highway patrolman that the stop sign controlled and traffic on Highway 40 had the absolute right of way was reversible error. Contributory negligence of the deceased was not a defense.

Will H. Hargus and C. E. Groh for appellant.

(1) The trial court erred in failing to direct a verdict of acquittal at the close of the State's evidence and at the close of all the evidence. The State's evidence failed to establish that the defendant was guilty of culpable negligence. 45 C.J., p. 700; State v. Ruffin, 344 Mo. 301, 126 S.W.2d 218; State v. Simler, 350 Mo. 646, 167 S.W.2d 376; Secs. 4382, 8385 (1), 8755, R.S. 1939; Roberts v. Wilson, 225 Mo.App. 932, 33 S.W.2d 169; Rodenkirch v. Nemnich, 168 S.W.2d 977; State v. Schneiders, 345 Mo. 899, 137 S.W.2d 439. (2) The trial court erred in giving Instruction 2 over the exception of the defendant. All authorities cited under Point (1). State v. Farmer, 111 S.W.2d 76; State v. Busch, 342 Mo. 959, 119 S.W.2d 265. (3) By reason of the insufficiency of the evidence to establish culpable negligence of the defendant and by reason of the lapse of time between the time of the commission of the alleged offense and the trial, the conviction should be reversed outright and the defendant should be discharged. State v. Joy, 315 Mo. 7, 285 S.W. 489. (4) The trial court erred in admitting, over the objection and exception of the defendant, the testimony of witness Albert F. Closson to the effect that at the intersection of Burrus Road and Highway No. 40 in Jackson County, Missouri, traffic on Highway No. 40 had the right of way. State v. Hayes, 247 S.W. 165; State v. Buckner, 80 S.W.2d 167; 23 C.J.S., sec. 872, p. 88; Sec. 4082, R.S. 1939; State v. Schoenwald, 31 Mo. 147; State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22; Secs. 8385, 8385(1), 8755, R.S. 1939; Rodenkirch v. Nemnich, 168 S.W.2d 977. (5) The trial court erred in refusing to strike out from the evidence testimony of witness Albert F. Closson to the effect that at the intersection of Burrus Road and Highway No. 40 in Jackson County, Missouri, traffic on Highway No. 40 had the right of way. All authorities cited under Point (4). (6) The trial court erred in stating in substance, in the presence and hearing of the jury, that Section 8385(1), R.S. 1939, Mo. R.S.A., applied only to city streets. Sec. 8385, R.S. 1939. (7) The trial court erred in giving Instruction 5 and in refusing to give Instruction 5A. Sec. 8385(1), R.S. 1939; Rodenkirch v. Nemnich, 168 S.W.2d 977.

J. E. Taylor, Attorney General, and Frank W. Hayes, Assistant Attorney General, for respondent.

(1) The court did not err in failing to direct a verdict of acquittal at the close of all the evidence. State v. Kelly, 107 S.W.2d 19; State v. Robinson, 177 S.W.2d 499; State v. Weiss, 185 S.W.2d 53; State v. Millin, 300 S.W. 694; State v. Campbell, 84 S.W.2d 618; State v. Murphy, 23 S.W.2d 137; Bramblett v. Harlow, 75 S.W.2d 626; Ross v. Wilson, 163 S.W.2d 342; Pappas Pie & Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793; State v. Carter, 116 S.W.2d 21; State v. Coulter, 20 S.W. 5; State v. Studebaker, 66 S.W.2d 877. (2) The court did not err in giving Instruction 2. (3) If the case is reversed for error in the trial thereof, it should be remanded for a new trial. (4) If the testimony of witness Albert F. Closson to the effect that No. 40 Highway had the right of way at this intersection was incompetent, such testimony was harmless and could not have prejudiced the appellant in this case. Paseo v. State, 117 P. 862; People v. Page, 260 P. 591; People v. Cowgill, 166 N.E. 535; State v. Crouch, 98 S.W.2d 550, 339 Mo. 847; State v. Barr, 102 S.W.2d 626, 340 Mo. 738; State v. Ragan, 106 S.W.2d 391. (5) The court's statement as to the application of Section 8385 (1), R.S. 1939 is not before this court for review. State v. Rosegrant, 93 S.W.2d 961, 338 Mo. 1153; State v. Marshall, 189 S.W.2d 301, 354 Mo. 312; State v. Breeden, 180 S.W.2d 684; State v. Davis, 196 S.W.2d 629. (6) The court did not err in giving Instruction 5 and in refusing to give Instruction 5A. Bramblett v. Harlow, 75 S.W.2d 626; Ross v. Wilson, 163 S.W.2d 342; McCombs v. Ellsberry, 85 S.W.2d 135; Yeaman v. Storms, 217 S.W.2d 495.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Appellant was convicted of manslaughter by culpable negligence under Sec. 4382 R.S. 1939, Mo. RSA Sec. 4382; punishment was fixed by the jury at two years in the penitentiary; he appealed.

Appellant in his brief assigns error (1) on the sufficiency of the evidence; (2) on the admission of evidence; (3) on the State's instruction 2; (4) on the first paragraph of instruction 5 and the refusal of 5A requested by appellant; and (5) on remarks of the court.

Appellant resided in Blue Springs, Jackson County; September 11, 1946, he went hunting in some woods along Burrus Road, a gravel road extending south from U.S. Highway 40; he drove his 1931 Pontiac; left his gun some place along Burrus Road and in the late afternoon went back for it; on the return trip, after getting his gun, his car while traveling north and while crossing highway 40, collided with an eastbound truck driven by A. L. Bosley who was fatally injured.

Highway 40 where Burrus Road extends south is separated into two paved traffic lanes, each 22 feet in width; these lanes are about a half block apart; the south lane is for eastbound traffic and the north lane for westbound traffic. Burrus Road does not extend farther north than to the north traffic lane of highway 40. According to the State's evidence appellant's car hit the right rear wheel and fender of the truck in the intersection of Burrus Road and the south lane of highway 40; appellant was driving 15 or 20 miles per hour and the truck was traveling 45 or 50; after the impact the truck skidded about 100 feet and turned over; Bosley was thrown on the concrete pavement of highway 40 and received fatal injuries; the truck, before coming to rest righted itself and stopped upright 66 feet east of the point where it turned over.

There was a stop sign on Burrus Road about 20 or 25 feet south of the pavement of the south traffic lane of highway 40; appellant, according to the State's evidence, did not stop at this sign, and was so intoxicated that he was unable to walk without assistance when the highway patrol arrived 10 or 15 minutes after the collision. Appellant drove his car zigzag going south on Burrus Road after his gun and the same on his return north; near the home of Mr. and Mrs. Cassity who were State witnesses and who lived on Burrus Road about a quarter of a mile south of highway 40, appellant, on the trip south on Burrus Road, got the right wheels of his car over in the underbrush along a fence row; then backed his car into the Cassity yard. After the impact he continued north to the north lane of highway 40; then backed his car south and over the south lane of 40 and stopped south of 40 and on the east shoulder of Burrus Road. When the highway patrol appeared appellant was still in his car and was not able to or did not give his name; only mumbled when attempting to talk; he did say, however, that he was not injured and that he was alone.

A patrolman took appellant's billfold from his pocket; found his driver's license and ascertained his name. Two half pint bottles of gin partly filled were in the car; both on the floorboards on the driver's side or one in the seat and one on the floor. According to the State's evidence the odor of liquor was on appellant's breath.

The point of impact was east of the center of the intersection and about 11 feet north of the south side of the pavement of highway 40. If the truck of the deceased was traveling 47 1/2 miles per hour (the average of 45 and 50) it was traveling approximately 71 feet per second, and if appellant's car was traveling 17 1/2 miles per hour (the average of 15 and 20) it was traveling approximately 26 feet per second. For the impact to have occurred at the point fixed by the evidence, not considering any slackening of speed by either, the truck was approximately 30 feet from the point of impact and west of the intersection when appellant entered upon the pavement. The case was tried on the theory that the intersection was a 22 foot square, the west side of which was a line on the west side of Burrus Road and extended north across the south lane of highway 40.

Appellant testified that before he started back after his gun he purchased two half pint bottles of gin in Lee's Summit that at the filling station in Lee's Summit where he had left his car, "several fellows around there" took a drink of his gin, and in this he was corroborated by two of those who took a drink of his gin. There was evidence that appellant was not intoxicated when he started back after his gun; he testified that he had taken only one drink; that he left the filling station "close to" 5 p.m. to go after his gun; that he got to the place where his gun was about 5:30 p.m.; that he did not get in the fence row or in the Cassity yard...