State v. Campbell, 33449.

• Decision Date: 11 July 1935
• Docket Number: No. 33449.,33449.
• Citation: 84 S.W.2d 618
• Court: Missouri Supreme Court
• Parties: STATE v. CAMPBELL.

84 S.W.2d 618

STATE v. CAMPBELL.

No. 33449.

Supreme Court of Missouri, Division No. 2.

July 11, 1935.

Appeal from Circuit Court, Buchanan County; J. V. Gaddy, Judge.

Sam Campbell was convicted of manslaughter in the operation of an automobile with culpable negligence, and he appeals.

Affirmed.

Homer C. King, of St. Joseph, for appellant.

Roy McKittrick, Atty. Gen., and Frank W. Hayes, Asst. Atty. Gen., for the State.

BOHLING, Commissioner.

Sam Campbell appeals from a judgment of the circuit court of Buchanan county, Mo., imposing a fine of $400 and a sentence of three months' confinement in the county jail on a verdict of guilty of manslaughter in the operation of an automobile with culpable negligence.

William L. Mallon, a youth of about sixteen years and whose home was in the state of California, was visiting relatives in St. Joseph, Mo., during the school vacation of 1931. He secured employment with the Norton Ice Cream Company, of Eighteenth and Garfield avenue, in said city. His duties, in part, required him to assist his cousin Leo Mallon, a youth of about seventeen years, in making deliveries of ice cream and the return of ice cream containers to the plant.

Shortly after 5 p. m. on August 5, 1931, the Mallon boys were instructed to pick up and return some containers to the plant. Leaving the plant in a one-ton GMC truck, they proceeded west on Garfield avenue. Garfield avenue runs almost due east and west. On the south side of Garfield avenue are street car tracks of two rails and south of these tracks is a railing separating the street car tracks from railroad tracks, which are slightly below the level of the street car tracks. The space occupied by the street car tracks and for a distance of eighteen inches north of the north rail is paved with brick. North of the brick pavement and extending to the north curb of Garfield avenue is a 30-foot asphalt or macadam pavement.

The evidence on behalf of the state established the following facts. Leo Mallon was driving the ice cream company's truck west at a slow rate of speed and within about four feet of the north curb of Garfield avenue. They had traveled only two or three blocks from the company's plant when defendant was observed approaching from the west in a Ford coach and on the south side of Garfield avenue, just north of the street car tracks. The speed of defendant's car was described as fast, 30 to 35 miles an hour. There was no street car or other vehicular traffic on the highway in the immediate vicinity, except a Ford coach operated by Mrs. John Ruoff about 30 feet to the rear of and behind the truck. When defendant's Ford was about 30 to 40 feet (according to Leo Mallon) or 10 feet (according to Mrs. Ruoff) west of the truck, defendant suddenly swerved his Ford to the northeast across Garfield avenue and against the truck. Leo Mallon testified he turned the truck to the northwest, applied the brakes and had stopped at the time of the collision. The Ford struck the left side, at the front, of the truck. The windshield of the truck was broken, and William L. Mallon jumped from the truck bleeding profusely from the neck and mouth. A piece of glass from the windshield of the truck had struck him on the neck and severed one of the carotid arteries. He died almost immediately from the resulting arterial hemorrhage. The truck, after the collision, was headed northwest, with the front next to the north curb of Garfield avenue and the rear about three to five feet south of the curb. Defendant's Ford was at an angle, headed northeast, with the left front end at or near the left front side of the truck. For a short time defendant remained seated in his car. However, he got out; and there was testimony that he had a strong odor of liquor on his breath; that he was "kinda limp" and "staggered around"; that the police had to hold him; that one could not tell much about what he said; that he talked "very incoherently" and in a "thick drunken tongue"; and that he was just about as drunk as a man could be. The police took a bottle of intoxicating liquor from defendant's inside coat pocket at the scene of the accident.

Evidence on behalf of defendant was to the effect that he was not intoxicated; that as he approached the point of collision he was driving east two or three feet to the north of the street car tracks at a speed of 20 to 25 miles an hour; that he observed a car going west and a truck behind it; that just as he was passing the rear end of the car the truck suddenly turned out as if to pass the car and struck the left front wheel of defendant's Ford; that when the cars stopped, the Ford was facing east, parallel with, and about three feet north of the street car track, and the truck was at an angle facing into the side window of his Ford; that the bottle of intoxicating liquor taken from him by the officers was the property of a friend who had been with him during the day, but he had forgotten about it when they parted; that he was informed that some one was injured and he was looking for them, but never saw either of the boys in the truck, although it was established that deceased was at the scene of the collision for more than five minutes before the ambulance arrived.

Defendant offered a demurrer at the close of the case, and his motion for new trial assigns error in that there was no substantial evidence to sustain the verdict. In his brief defendant contends the verdict is against the weight of the evidence. The record discloses no occasion, nor does defendant contend that he was compelled to change the course of his automobile. The state's evidence clearly establishes more than ordinary negligence. It shows that defendant had an unobstructed passway of more than half the highway for his Ford coach, and that defendant, by the exercise of any degree of care whatever, could have passed along the place in question without injuring any one. Under such circumstances to change the course of an automobile so as to cross to the opposite side of a public highway and strike an approaching automobile thereon indicates a reckless disregard for safety and human life on the part of the operator of the automobile. Cases on facts less excusable hold a case-made for the jury. State v. Studebaker, 334 Mo. 471, 482(2), 66 S.W.(2d) 877, 882(5); State v. Melton, 326 Mo. 962, 963, 33 S.W.(2d) 894(1). In addition, the jury might readily have believed defendant was stupidly intoxicated, did not have control of his automobile at the speed he was driving, and that his operation of the automobile recklessly endangered human life and limb.

Error is assigned in the overruling of defendant's demurrer at the close of the state's case. By offering evidence in his own behalf, defendant waived his right to be heard thereon. State v. Scheufler (Mo. Sup.) 285 S. W. 419, 420(3); State v. Vigus (Mo. Sup.) 66 S.W.(2d) 854, 856(3).

Defendant's motion for new trial asserts error in the definition of culpable negligence in instruction No. 4. The assignment does not point out what essential element is omitted or what improper element is embodied in the definition making it erroneous. It states but a general conclusion to the effect that the instruction does not properly declare the law. This is insufficient to preserve anything for appellate review. Section 3735, R. S. 1929, Mo. Stat. Ann. p. 3275; State v. Tharp, 334 Mo. 46, 52(3), 64 S.W.(2d) 249, 253(4). In his brief defendant contends the definition of culpable negligence authorized a conviction on proof of common-law negligence. A like attack was lodged against a practically identical instruction in State v. Studebaker, 334 Mo. 471,...