State v. Biel, No. 38346.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtWesthues
Citation169 S.W.2d 375
PartiesSTATE v. BIEL.
Decision Date25 March 1943
Docket NumberNo. 38346.
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.

[169 S.W.2d 376]

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...

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5 practice notes
  • State v. Parker, No. 74794
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ...surprised at trial and needed time to respond to unexpected testimony, the proper remedy was continuance, not mistrial. State v. Biel, 169 S.W.2d 375, 376 (Mo.1943); State v. Brass, 781 S.W.2d 565, 566 (Mo.App.1989). Page 918 The trial court committed no plain error in denying a mistrial. C......
  • State v. Wrice, No. ED 88727.
    • United States
    • Court of Appeal of Missouri (US)
    • October 16, 2007
    ...trial of the case, is to ask immediately for a post-ponement [sic] or continuance." Gatlin, 539 S.W.2d at 733, citing State v. Biel, 169 S.W.2d 375, 376 (Mo.1943), State v. Hohensee, 333 Mo. 161, 62 S.W.2d 436, 438-39 (1933), State v. Henson, 234 S.W. at In Stevenson, we noted that the......
  • Keyte v. Parrish, No. 24304
    • United States
    • Court of Appeal of Missouri (US)
    • February 7, 1966
    ...105; Thiele v. Citizens' Ry. Co., 140 Mo. 319, 41 S.W. 800, 805; Silvey v. Herndon, Mo.App., 234 S.W.2d 335, 340; State v. Biel, Mo., 169 S.W.2d 375, 376; Pitzman's Company of Surveyors and E. v. Bixby & Smith, 338 Mo. 1078, 93 S.W.2d 920, 921; Tuttle v. Tomasino, Mo., 336 S.W.2d 683, 6......
  • Silvey v. Herndon, No. 6955
    • United States
    • Court of Appeal of Missouri (US)
    • November 16, 1950
    ...mute and speculate on the verdict and when it is found against him, claim a new trial on the ground of surprise. State v. Biel, Mo.Sup., 169 S.W.2d 375. Pitzman Co. of Surveyors & Engineers v. Bixby & Smith, 338 Mo. 1078, 93 S.W.2d If anyone was surprised at the testimony relative t......
  • Request a trial to view additional results
5 cases
  • State v. Parker, No. 74794
    • United States
    • United States State Supreme Court of Missouri
    • October 25, 1994
    ...surprised at trial and needed time to respond to unexpected testimony, the proper remedy was continuance, not mistrial. State v. Biel, 169 S.W.2d 375, 376 (Mo.1943); State v. Brass, 781 S.W.2d 565, 566 (Mo.App.1989). Page 918 The trial court committed no plain error in denying a mistrial. C......
  • State v. Wrice, No. ED 88727.
    • United States
    • Court of Appeal of Missouri (US)
    • October 16, 2007
    ...trial of the case, is to ask immediately for a post-ponement [sic] or continuance." Gatlin, 539 S.W.2d at 733, citing State v. Biel, 169 S.W.2d 375, 376 (Mo.1943), State v. Hohensee, 333 Mo. 161, 62 S.W.2d 436, 438-39 (1933), State v. Henson, 234 S.W. at In Stevenson, we noted that the......
  • Keyte v. Parrish, No. 24304
    • United States
    • Court of Appeal of Missouri (US)
    • February 7, 1966
    ...105; Thiele v. Citizens' Ry. Co., 140 Mo. 319, 41 S.W. 800, 805; Silvey v. Herndon, Mo.App., 234 S.W.2d 335, 340; State v. Biel, Mo., 169 S.W.2d 375, 376; Pitzman's Company of Surveyors and E. v. Bixby & Smith, 338 Mo. 1078, 93 S.W.2d 920, 921; Tuttle v. Tomasino, Mo., 336 S.W.2d 683, 6......
  • Silvey v. Herndon, No. 6955
    • United States
    • Court of Appeal of Missouri (US)
    • November 16, 1950
    ...mute and speculate on the verdict and when it is found against him, claim a new trial on the ground of surprise. State v. Biel, Mo.Sup., 169 S.W.2d 375. Pitzman Co. of Surveyors & Engineers v. Bixby & Smith, 338 Mo. 1078, 93 S.W.2d If anyone was surprised at the testimony relative t......
  • Request a trial to view additional results

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