State v. Biewen

Decision Date23 February 1915
Docket NumberNo. 30140.,30140.
Citation169 Iowa 256,151 N.W. 102
PartiesSTATE v. BIEWEN.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Keokuk County; K. E. Willcockson, Judge.

G. W. Biewen was convicted of manslaughter, and he appeals. Affirmed.D. W. Hamilton and Wagner & Updegraff, all of Sigourney, for appellant.

George Cosson, Atty. Gen., C. C. Hamilton, Co. Atty., and Talley & Hamilton, all of Sigourney, for the State.

LADD, J.

In the evening of August 16, 1913, Clarissa Hammes, a child nearly one year and six months old, was run over by an automobile, and died, in consequence of injuries received, the following morning. Her parents lived on the main traveled north and south highway between Harper and Richland. The mother was the only eyewitness, and thus described what occurred:

“There is a lane between the house lot and the barn lot. She did not go with me in the barn lot, but stopped in the lane. I went to the barn lot to milk. I milked a cup of milk; took it to her. She sat in the lane drinking the milk. After I returned and was milking, I saw an automobile coming north. Gus Biewen was in the car alone. I saw a car coming south a few minutes after it went north. I called for my girl and screamed. I saw her in the road right where it turned into our lane. I saw the car strike her. I was screaming at the time. From where I was when I first saw the car, I had gotten about halfway to the fence when it struck her. I saw the child in the road at the time this car was going south; saw her when I raised up to look for her. The car bounced when it hit the child. I heard the car honk before it hit the child. I don't know who was in the car. I seen it was a car, and that is all. I don't know whether there was two in the car or not. I didn't look. When I picked the child up, she was on the west side of the traveled road. I carried her to the well, threw cold water on her, and then took her to the house and called for my husband. * * * She died about 4 o'clock in the morning of the 17th. She never regained consciousness. The car that came to the north was running pretty fast. I did not notice that it checked up. It was about 7 o'clock. It was light. * * * The child had on a blue dress and nothing on its head. There was a dog with the child--a scotch collie. It was yellow. It was about a year old. When I first looked up the dog was with her. I don't know where the dog was after that. The dog was not as tall as she was. The dog was not in the habit of running out at cars. He would go out and bark, but never followed a car.”

Other evidence showed that the child was a head taller than the dog, and could run. The highway was clear at the place of the collision and for a distance 300 yards north and suitable for travel for a width of at least 30 feet. A short distance south the roads crossed, and east of the corner a quarter of a mile and then south the same distance was defendant's home. In his service was Lloyd Dubois, living in a house a few rods farther on. The latter had been assisting Bombeis thresh on that day, and testified:

That on his way home, at a point ten rods north of the corners last mentioned, he met defendant going north in his Ford automobile. That he asked me how soon I would be ready to go down to Ollie. I said as soon as I could get my clothes changed and my team put up. I asked him where he was going. He said he was going up the road a mile or two. I let my team trot along. I went right home to where I lived. When I was unhitching my team, I saw him again standing on the north side of the team. That was the first I saw of him after I got home.”

To the north of the place of the collision about a half mile is another road crossing, and Bombeis' farm was about a quarter of a mile farther north and a like distance east of these corners. Dubois had left there between 6:30 and 7 o'clock p. m. Several parties examined the ground at these corners shortly afterwards, and testified to recent car tracks, indicating that an automobile coming from the south had turned there and returned to the south; and Mrs. Hammes testified that she observed no car other than defendant's go north that evening, and but the one going south. Dubois noticed none going either way other than defendant's, and testified that he and defendant went to Ollie in the evening; that shortly after their return defendant said to him that he believed he was in some trouble; that his wife said some one had run over C. Hammes' little girl; that they said he did it; and that he believed he would go there, and wanted Dubois to go with him. They did not go, nor did defendant ever go there. On the other hand, one Marr testified that at about the time in question he was driving north with horse and buggy and stopped at a place, probably defendant's, for a drink of water; that when he went he saw an automobile going north, and met another going south a half or three-quarters of a mile north of Hammes' house, and saw none turn in the road. He had never been on this road before, and was traveling from Richland to Harper. The defendant's wife testified that he reached home at about 6 o'clock p. m., and immediately took her and their children for a ride, and that they drove north past Hammes' house to the second cross roads north, when they turned and came back home, and that he did not leave again until he went to Ollie in the evening, and was at home when Dubois came from Bombeis' place. The defendant testified that in returning from Sigourney he passed the Hammes home and took the ride as related by his wife; that a man, presumably Marr, called for a drink of water; and that he did not pass along that road after taking the ride. He denied meetingDubois, as related by the latter, or mentioning trouble to him, though admitting the talk about going over to Hammes'.

Such was the evidence set out somewhat in detail, because of the contention of counsel that it was insufficient to sustain the conviction. The child was killed by an automobile being driven with an unobstructed view; and as there was no obstacle to turning aside, so as to avoid the collision, death might well have been found to have been in consequence of the recklessness of the driver. This was true whether the driver observed the child or not, for, if he did not see, he should have done so, in the exercise of ordinary diligence. The slower he was moving in such a situation, the greater must have been his carelessness. Counsel suggest that, as the child was found west of the center of the road, the driver's attention may have been distracted by the dog on the east side, and the child, in following the dog, may have run out in front of the car. A sufficient response to this is the mother's testimony that the child was in the road in plain view. Moreover, the driver must have been aware of striking the child, and moving on without stopping or tendering assistance was a circumstance indicative of guilt on his part.

[1][2] The evidence was such that the jury was warranted in finding that the child's death was due to the recklessness of the driver of the automobile, and the only remaining issue was the identity of the driver. As to this, the evidence was in conflict, and the arguments are directed to which conclusion is more probable. This was for the jury to...

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