State v. Burchett
| Decision Date | 13 May 1957 |
| Docket Number | No. 2,No. 45471,45471,2 |
| Citation | 302 S.W.2d 9 |
| Parties | STATE of Missouri, Respondent, v. Charles Albert BURCHETT, Appellant |
| Court | Missouri Supreme Court |
Clayton W. Allen, Rockport, John J. Robison, of Robison & Miller, Maysville, for appellant.
John M. Dalton, Atty. Gen., Russell S. Noblet, Asst. Gen., for respondent.
The defendant, Charles Albert Burchett, was charged by information in the Circuit Court of Nodaway Courty with the crime of manslaughter growing out of an automobile accident. On change of venue the case was transferred to Andrew County where the defendant was convicted by a jury and his punishment assessed at nine years' imprisonment in the state penitentiary. Defendant's motion for new trial was overruled, and he appealed.
The state's evidence tended to show that on November 7, 1954, at about 2:30 a. m., the defendant was driving a one-half ton Ford V-8 pickup truck north on U. S. Highway 71, a concrete surfaced road, at a point about one and one-half miles north of Maryville. The highway, quite straight at this point, descends into a valley, north of which it ascends a distance of approximately 1,000 feet to the top of the hill. The northward ascent is marked with a 'no passing' zone.
Ahead of the defendant, and also northbound, was a Plymouth automobile, 1951 model, occupied by Mr. and Mrs. Ray Wright who were driving to their home in Iowa. As the automobiles stated up the hill the defendant increased the speed of his truck, pulled out suddenly and undertook to pass the Wright automobile, and came into collision with a southbound 1937 Plymouth coupe occupied by Mr. and Mrs. Ivan Glea Rogers and their ten month old child. The point of collision was about 40 feet or three car lengths north of the begining of the highway markings indicating the 'no passing' zone and on the west side of the pavement in the line of southbound traffic. Defendant's truck had about come abreast of the Wright automobile when the head-on collision with Rogers' car occurred. The left side of the Wright automobile was struck and damaged, but it was able to proceed and clear itself of the wreckage. The defendant's truck struck the Rogers' coupe with sufficient force to knock it back northward about 20 feet. The Rogers' car came to rest headed approximately northwestward on the west side of the pavement and shoulder with defendant's truck at its rear. The Rogers' car was completely wrecked. As one witness said, it appeared to have 'exploded.' Rogers was thrown to the pavement and was apparently dead when the first passing motorists arrived. The Rogers' ten month old baby also killed. The defendant was injured and was taken to the hospital in Maryville by friends who, by chance, came along immediately after the collision.
Joe Summers, returning to his home in Iowa from a vacation trip, was driving a short distance behind the defendant when the accident occurred. He was the state's principal witness as to the manner of its occurrence. Photographs of the damaged automobiles taken at the scene evidence a terrific impact. There was evidence that the defendant had been drinking and was intoxicated at the time of the accident. The defendant denied that he was intoxicated or that he had been drinking. Further details of the evidence will be referred to in the course of the opinion.
The defendant presents twelve claims of error for our consideration. Prior to the trial, he filed a motion to suppress certain evidence. He alleged in the motion that shortly after the accident and without his knowledge and consent a sample of his blood was taken for the purpose of testing it for its alcoholic content and that the result of such test constituted incompetent and illegal evidence and 'even though the Court should sustain the objection of the defendant to such evidence when offered the offer would prejudice the jury against the defendant, and that any admonishment by the Court to the jury to not consider such offer could not remove the prejudice created by said offer.' The motion was taken up prior to trial and sustained with respect to the blood test.
At the trial Sergeant J. W. Wahn, a member of the Missouri Highway Patrol for 17 years, testified that the defendant was gone when he arrived at the scene of the accident. He talked with the defendant 'later that day in the hospital in Maryville' and the defendant told him that he was driving and was alone in the pickup truck. The following then occurred:
'Mr. Robinson: What time?
'Mr. Robinson: We will object to that.
'The Court: Let us fix the time and place.
'Mr. Allen: We will object to that and ask that the jury be----
'The Court: Sustained.
'The Court: Are you through?
'Mr. Robinson: Yes.
'Out of the Hearing of the Jury.
'Mr. Robinson: We renew the objection and renew our request that the jury be discharged for the reason that the defendant previous to the opening statements filed a Motion to Suppress any evidence as to any blood tests; that the State of Missouri confessed Said Motion as to blood test and admitted that any such evidence was incompetent; that same was taken without the knowledge and consent of the defendant.
'Mr. Allen: And in violation of his constitutional rights.
'Mr. Robinson: (Continuing) And in violation of his constitutional rights and that the conduct of the State in bringing said matter before the jury, knowing from the nature of the question that the witness would say that he knew because of blood tests, has prejudiced the rights of the defendant to such an extent before the jury that no admonition of the Court to the jury to disregard it, will remove the prejudice caused by the improper conduct of the Prosecuting Attorney.
'Mr. Allen: And that the admonition of the Court was insufficient to cure the error.
'The Court: What do you want me to say?
'Mr. Allen: We want you to discharge the jury.
'The Court: Do you have any suggestions as to the admonition?
'Mr. Robinson: We will be very happy if you want to admonish the witness.
'Mr. Allen: We think that any further statement before the jury in this record, and for the record, simply magnifies the error, and we are renewing our objection that this jury be discharged and a mistrial be declared.
Further direct examination of Sergeant Wahn disclosed that he first saw the defendant at the hospital in Marryville about 2:30 or 3:00 o'clock in the afternoon, about 10 or 12 hours after the accident. The defendant alleges error because of the trial court's refusal to discharge the jury and declare a mistrial.
The state concedes that the witness' answer was improper, but contends that the evidence was only cumulative and the action of the trial court was effective to keep the error from being prejudicial. The state relies upon State v. Vidauri, Mo., 293 S.W.2d 955, 956, where the voluntary statement of a witness that he had been told that the defendant was a participant in the crime was held to be cumulative and not prejudicial under the circumstances, and State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 8, where the question of a physician's competency to testify was held to be immaterial because his evidence that the defendant was intoxicated 'was merely cumulative upon an issue which was so thoroughly and overwhelmingly established by other testimony as to make it certain that no prejudice could possibly have resulted to defendant, * * *.' We think the testimony in the case at bar differs not only in degree but also in character from that in the cases cited.
The question of defendant's intoxication was material, bearing as it did upon his culpable negligence. On behalf of the state, Sergeant Wahn testified that the defendant told him that Two police officers who saw the defendant at the American Legion Hall before the accident testified that defendant was staggering and his speech was not clear. One said he was intoxicated. Harry Scott, who worked for the Price Funeral Home, saw the defendant at the hospital after the accident, smelled liquor on him, and thought from the way he talked that he was intoxicated. Nina Dougan, a nurse at the hospital, testified that she smelled liquor on the defendant's breath and it was her opinion that he was intoxicated. On the other hand, Edwin Weiderholt, who took the defendant from the scene of the accident to the hospital, on the stand for the state testified that he didn't see any evidence of the defendant's being intoxicated. On...
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