State v. Bast

Decision Date29 September 1944
Docket Number8510.
PartiesSTATE v. BAST.
CourtMontana Supreme Court

Appeal from Eleventh Judicial District Court, Flathead County; Dean King, Judge.

George Bast was convicted of manslaughter, and he appeals.

Reversed and verdict set aside, information ordered dismissed, and defendant discharged.

James B. O'Flynn, of Kalispell, and T. W. Greer, of Whitefish for appellant.

R. V Bottomly, Atty Gen., Fred Lay, Asst. Atty. Gen., and Marshall Murray, of Kalispell, for respondent.

ADAIR Justice.

The defendant was charged with the crime of manslaughter, it being alleged that on July 31, 1943, in Flathead county, he "did wilfully, unlawfully, knowingly and feloniously kill one John Otho Herman, a human being." A trial was had and the jury returned a verdict of guilty leaving the punishment to be fixed by the court with an oral recommendation of lenience. The trial court sentenced defendant to the state prison and defendant appealed from the judgment.

The defendant's motion for the court to direct the jury to return a verdict of not guilty made at the close of the state's case was denied. The defendant here contends that the evidence is insufficient to support the verdict and judgment and that it was error for the trial court to deny his aforesaid motion.

The decision as to whether there is sufficient evidence to support the judgment of conviction must depend upon the circumstances of each case.

The defendant George Bast is a merchant operating the Super Cream Parlor in Kalispell. He is a widower. At about ten or fifteen minutes after eleven o'clock on the evening of July 30 1943, he received, at his place of business, a telephone call from Mrs. Lew Cooper, a widow whom he had known for many years, asking him to join Mrs. Cooper and her sister, Mrs. Alphe McQuirk, at the Vista Club in Kalispell. Upon closing his place of business for the night, Mr. Bast crossed the street to the Vista Club, arriving about 11:30 or 11:40 o'clock p. m. There he found the two sisters talking with John Otho Herman, a rancher. Mr. Bast and Mr. Herman were not previously acquainted but they were introduced by Mrs. McQuirk. Mr. Herman advised the group that he was going to Whitefish and he asked them to accompany him on the trip, requesting Mrs. McQuirk to drive his car. She advised him that she would not undertake it as she did not do much driving. Mr. Bast then said that he had not yet had his dinner and that it was a long time since breakfast, whereupon Mrs. Cooper volunteered to accompany Mr. Bast while he was getting his supper. Accordingly, after remaining at the Vista Club for but ten or fifteen minutes, Mr. Bast and Mrs. Cooper crossed the street to the Kalispell Cafe where Mr. Bast ordered his meal. While Mr. Bast was eating, Mr. Herman accompanied by Mrs. McQuirk entered the cafe and again Mr. Herman talked about driving to Whitefish. Mr. Bast suggested that he call a cab for the trip but Mr. Herman said: "What was the use of calling a cab. I have a car; don't you think I can drive it?" Mr. Bast replied: "Maybe you can and maybe you can't. I would rather take a cab which I have done always." Mr. Herman then threw his car keys on the table in front of Mr. Bast saying: "Here is my keys. There is no use in spending money for a cab." Mr. Bast replied: "That is the only way I will go."

At about fifteen or twenty minutes after twelve o'clock midnight the four left the cafe and climbed into Mr. Herman's car, a Plymouth sedan. Mr. Herman and Mrs. McQuirk seated themselves in the rear seat in which there was also a box of groceries, a sack of flour and several sacks of feed while Mr. Bast and Mrs. Cooper occupied the front seat with Mr. Bast driving.

Nearing Whitefish, the party stopped at the Oasis, a tavern, located on the main highway about a mile and a half south of Whitefish. There they danced until about 1:30 a. m. when they proceeded to Whitefish where they remained and danced for a quarter of an hour at a tavern called the Palm. At 2 o'clock a. m., when the tavern closed, the party started to return to Kalispell. Again the defendant Bast and Mrs. Cooper occupied the front seat with Mr. Bast at the wheel while Mrs. McQuirk rode in the back seat with Mr. Herman at her right.

On the way to Kalispell, at a place about a mile and a half south of the Oasis, the Herman car met and passed a team of horses hitched to a trailer and shortly thereafter the defendant complained to the other passengers of the brightness of the lights of a car approaching on the highway from the south saying: "That boy is coming pretty fast. I am going to have to take to the ditch." With this remark, the defendant testified that he shifted the car into second gear and drove off the highway and into a shallow depression parallel therewith for a distance of about 268 feet. On leaving the highway the Herman car proceeded first over comparatively smooth ground and then through some low brush which concealed from the view of the driver a hole about two feet in depth containing some large rocks. The evidence is undisputed that but for such hidden hole and rocks the car could have been driven back upon the highway on the route followed by the defendant. Upon going through the brush however the car struck a couple of the rocks which deflected the car from its course causing it to side-swipe a tamarack tree 10 to 12 inches in diameter. The contact with the tree damaged and flattened the right side of the body of the car, sealing the right front door shut so that it could not be opened while the right rear door was wide open and flopping against the rear fender with the door stops broken, the inside door handle missing and bark from the tree embedded on the inside of the door. Highway Patrolman Morris Blake, called as a witness for the state, testified that this bark so embedded on the inside of the right rear door led him to conclude that the door must have been open when it hit the tree.

The car did not overturn but came to a stop about 6 feet from the aforementioned tamarack tree with all four wheels on the ground, with both head lamps burning and with Mr. Bast and Mrs. Cooper sitting in the front seat and Mrs. McQuirk in the back seat. The box of groceries and sacks of flour and feed were still in the back of the car. Mr. Bast stepped out of the car and, on walking around it, he discovered Mr. Herman lying on the ground to the right of the car groaning. After first assisting Mrs. Cooper and Mrs. McQuirk out of the car, Mr. Bast turned his attention to Mr. Herman whom he sought to render more comfortable.

The witness J. B. Schnee was the first to arrive on the scene after the accident. He testified that when he drove up there was no one in the Herman car; that Mrs. Cooper and Mrs. McQuirk were both standing to the left of the car; that Mr. Herman was lying on the ground to the right of the car groaning and that Mr. Bast was at his side trying to talk to him. Completing a hasty survey, Mr. Schnee remarked, "This is an ambulance job," and then immediately drove to Kalispell where he ordered an ambulance sent to the place of the accident.

Next on the scene was the witness William Roedel. Mr. Bast requested the witness to lend a hand in lifting Mr. Herman from the ground but the witness declined, saying, "I have a team standing and have to go." Mr. Bast thereupon lifted Mr. Herman from the ground and placed him in the rear seat unassisted, when he inquired of Mr. Herman if he were all right and the latter replied, "Yes, take care of the girls."

Mr. Bast then attempted to start the motor of the Herman car but receiving poor response and being unable to move the car on its own power, he set out "on the double quick" to summon help. It was about one mile and a half back to the Oasis and Mr. Bast covered this entire distance on foot. On arriving there he was told by the proprietors that William Roedel had just been in and reported the accident stating that he had trotted his team all the way from the scene. Advising Mr. Bast that they had already reported the accident by telephone to Mr. Blake of the highway patrol at Kalispell, the proprietors then took Mr. Bast in their car and returned him to the scene of the accident.

During Mr. Bast's...

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