State v. Biel, 38346.

• Citation: 169 S.W.2d 375
• Decision Date: 25 March 1943
• Docket Number: No. 38346.,38346.
• Parties: STATE v. BIEL.
• Court: United States State Supreme Court of Missouri

169 S.W.2d 375

STATE v. BIEL.

No. 38346.

Supreme Court of Missouri, Division No. 2.

March 25, 1943.

Appeal from Circuit Court, Jefferson County; Edw. T. Eversole, Judge.

Henry Joseph Biel was convicted of manslaughter, and he appeals.

Affirmed.

Matthes & Weier, of Hillsboro, for appellant.

Roy McKittrick, Atty. Gen., and Tyre W. Burton, Asst. Atty. Gen., for respondent.

WESTHUES, Commissioner.

Appellant was convicted in the circuit court of Jefferson county, Missouri, on a manslaughter charge and sentenced to imprisonment in the penitentiary for a term of two years, from which sentence he appealed.

The evidence disclosed that on the evening of September 1, 1940, at about 8:30 o'clock, the deceased, Doris Klute, was riding in a car being driven in a northerly direction on highway 61, in Jefferson county, when it collided head-on with a car being driven south. The collision occurred on the east lane of the highway which is a four-lane paved roadway at that point. The evidence showed that appellant was driving the car going south and that he was intoxicated at the time. A number of people were seriously injured and Miss Doris Klute died as the result of injuries sustained in the collision. Appellant has briefed only two points upon which he seeks a reversal of the conviction. He conceded that the evidence was ample to sustain a conviction, but alleges in his brief that he was surprised at the testimony of a witness for the state and that he was entitled to a new trial on newly discovered evidence. We will dispose of these in the order mentioned.

Walter T. Whitehead was in the car with appellant at the time of the accident. He was seriously injured and taken to the city hospital in St. Louis. While at the hospital his deposition was taken wherein he testified that he, Whitehead, was driving the car at the time of the accident. At the trial he testified for the state that appellant was driving the car. Appellant did not testify and the only evidence introduced by him consisted of the deposition of Whitehead taken at the hospital. Whitehead while on the stand testified, when asked about his deposition, that he did not remember having testified; that he had received a severe injury in the collision and did not remember for a long time what had occurred at the time of the collision or thereafter. During the course of the trial appellant did not make any request of the trial court concerning this matter. He contented himself with a cross-examination of Whitehead and with introducing his deposition. There was other substantial evidence tending to prove that appellant was driving the car. The car belonged to him and he was seen driving it, with Whitehead in the front seat, shortly before the accident. Appellant in support of his contention that he was entitled to a new trial because of an alleged surprise in the evidence of Whitehead, cited State v. Henson, 290 Mo. 238, 234 S.W. 832; 23 C.J.S., Criminal Law, § 1431; and 39 Am.Jur. 158. Let us quote from 23 C.J.S., Criminal Law, § 1431:

"A new trial will not be granted on account of surprise occasioned by the introduction of evidence taken on the preliminary examination; or merely because a witness gives unexpected testimony; or because of the hostility of accused's own witness; or because a witness gives testimony different from that which he gave on a previous occasion; * * *.

"As in other cases where a new trial...