State v. Bowser

• Citation: 145 P.2d 135,158 Kan. 12
• Decision Date: 22 January 1944
• Docket Number: 35926.
• Parties: STATE v. BOWSER.
• Court: United States State Supreme Court of Kansas

145 P.2d 135

158 Kan. 12

STATE v. BOWSER.

No. 35926.

Supreme Court of Kansas

January 22, 1944

Syllabus by the Court.

Under statute the only persons to whom motorist involved in accident resulting in injury or death is required before leaving scene of accident to give his name, address and registration number of his vehicle are "the person struck or the driver or occupant of or person attending any vehicle collided with". Gen.St.Supp.1941, 8-520.

Criminal statutes must be strictly construed in favor of accused.

Courts cannot extend by intendment the provisions of criminal statutes.

An information charging that accused left scene of accident "without giving his name, address or motor registration" did not allege an offense under statute requiring motorist to give such information to "the person struck or the driver or occupant of or person attending the vehicle collided with" where person struck was rendered unconscious and immediately thereafter two persons, one of whom was injured person's grandson arrived at scene of accident, and injured person was put into the others' automobile. Gen.St.Supp. 1941, 8-518, 8-520.

Where information did not allege an offense under statute requiring motorist involved in accident to give certain information and evidence disclosed that no persons were present to whom there was an obligation to give such information, accused should have been discharged. Gen. St.Supp.1941, 8-518, 8-520.

In prosecution for leaving scene of accident without giving information required by statute, instruction that a purpose of statute is to require a citizen in collision to stop and give aid and not leave the wounded alone and helpless, was erroneous as leaving impression that an issue for jury was whether accused had failed to give aid to injured person where there was no evidence to elicit such instruction. Gen St.Supp.1941, 8-518, 8-520.

1. The general rule is that criminal statutes are to be strictly construed as against the state and in favor of the accused.

2. Courts are not at liberty to extend by intendment the provisions of statutes creating and defining crimes.

3. Under the provisions of section 8-520, G.S.1941 Supp., the only persons to whom "the driver of any vehicle involved in an accident resulting in injury to or death of any person" is required, before leaving the scene of the accident, to give "his name, address, and the registration number of the vehicle which he is driving" are "the person struck or the driver or occupant of or person attending any vehicle collided with."

4. In a criminal action, arising out of an automobile accident, the defendant was charged in the second count with leaving the scene "without giving his name, address or motor registration number". From the record it appears that the person struck was rendered unconscious by the blow; that immediately after the accident two young men, one of whom was a grandson of the injured man, arrived at the scene in another car; that the injured man was put into the young men's car by them and by the defendant and taken to his home; that aside from the injured man who was unconscious and unable to receive information there was no one present at the scene who was a "driver or occupant or person attending any vehicle collided with." Held, under the facts more fully stated in the opinion, the court erred in overruling the motions to quash the second count of the information and to discharge the defendant as to the second count.

Appeal from District Court, Neoano County; LeRoy Bradfield, Judge.

Newton Bowser was convicted of leaving the scene of an automobile accident without giving information as required by statute, and he appeals.

Reversed with directions.

SMITH and HARVEY, JJ., dissenting.

Edward Rooney, of Topeka (William M. Bradshaw and Jacob A. Dickinson, both of Topeka, on the brief), for appellant.

George W. Donaldson, Co. Atty., of Chanute (A. B. Mitchell, Atty. Gen., and Wm. P. Timmerman, Asst. Atty. Gen., on the brief), for appellee.

HOCH Justice.

Appellant was prosecuted on two counts growing out of an automobile accident. Under the first count he was charged with manslaughter in the fourth degree; under the second count with leaving the scene of an accident "without giving his name, address or motor registration number". 8-518 and 8-520, G.S.1941 Supp. The state did not contend that the defendant intended to kill or injure any one, the charge being based solely on "culpable negligence". The trial court instructed the jury that if they did not find the defendant guilty of manslaughter in the fourth degree, 21-420, G.S. 1935, they should consider whether he was guilty under the first count of "negligent homicide"--a crime of lesser degree defined in 8-529, G.S.1941 Supp.; that if they did not find the defendant guilty of "negligent homicide" they should consider whether he was guilty under the first count of "reckless driving"--an offense of lesser degree as defined in 8-531, G.S.1941 Supp. The jury acquitted on the first count and convicted on the second count. From the judgment and from the sentence of one year in jail on the second count this appeal is taken.

Appellant's principal contentions are that count two did not state facts sufficient to constitute a crime under the statute and that the motion to quash should have been sustained; that the evidence was insufficient to establish a crime under the statute and that the motion to discharge should have been sustained; and that his rights were prejudiced by failure to give requested instructions covering his theory of the case.

This is the third appearance here for this case. The two former appeals (State v. Bowser, 154 Kan. 427, 118 P.2d 1055; State v. Bowser, 155 Kan. 723, 129 P.2d 268) were by the defendant, prior to trial upon the merits, and did not involve any issues now presented.

The accident occurred on the night of March 6, 1940 not far from Erie, Kansas. Appellant was driving from Parsons to his home in Topeka, Kansas. There was some conflict in the evidence concerning the weather, the appellant and some other witnesses testifying that it was raining and snowing. All agree that it was dark, the sky being overcast with clouds. Charles H. Moore, who lived a half mile or more from the intersection where the accident occurred, had gone to the mail box to get his mail and presumably was standing near the box, having parked his car near-by. Appellant's car, traveling westward, skidded and either struck Mr. Moore directly or hit the other car which in turn struck him, knocking him unconscious. Immediately after the accident another car, coming from the north, arrived at the intersection. The other car was occupied by two boys or young men, Harold Williams and Dewey Gearhart, the latter being the driver. The two boys and appellant got out of their cars and Harold Williams identified the injured and unconscious man, who was lying on a pile of chat or gravel, as his grandfather. They lifted him into the boy's car. Appellant testified that he helped but Gearhart testified that he was not sure whether appellant helped pick up the injured man but that appellant started to raise the front seat--the car being a two-door sedan--so that Mr. Moore could be put in the back seat, but that he and Williams wanted him put in the front seat. Both boys testified that Bowser told them to take him to the hospital and he would follow, but that after they got into the car Williams said they would take him home, which was about three-quarters of a mile distance and that Bowser probably didn't hear that statement. They then drove to the home but Mr. Moore was dead when they arrived. Appellant testified that he told the young men that he was "Bowser from Topeka" but that they were much excited and "everything was in a rush" and he didn't know whether they heard him. He testified that he did not say he would follow them to the hospital but said that he was going on, meaning to Topeka. The boys testified that they didn't hear Bowser say who he was, and that they didn't ask him his name or address. They admitted that they were excited and said that Bowser was also excited--which was natural enough for all concerned, under the circumstances. What happened at the scene, following the accident, took place within a few minutes.

Gearhart returned to the scene soon after the accident and gathered up some mail which was scattered on the ground. The appellant had gone. One of the boys had noticed that the Bowser car was a Pontiac and that it bore a county 3 license tag. This information was furnished and peace officers of Coffey county caught up with appellant about fourteen miles north of Burlington and took him back to Burlington. There is some conflict of testimony concerning the conversation between the officers and appellant or as to the interpretation to be given to it. However, the issues here to be determined do not require further review of the evidence.

Appellant's contentions, more specifically stated, are that the second count was insufficient because it failed to advise him in what respect he had violated the statute (8-518 and 8-520) that Mr. Moore being unconscious there was no one present to whom he was under legal obligation, under the statute, to give his name, address and car tag number; that he attempted to disclose his identity to Williams and Gearhart; that when the boys drove away with the injured man he was left alone at the scene, on a dark and inclement night, and that he was under no obligation to remain there and no purpose would have been served by doing so; that he was entitled to an instruction interpreting the statute in the light of the circumstances existing, and that under section 8-523, G.S.1941 Supp., he had twenty-four hours in which...