State v. Carlson

• Citation: 29 S.W.2d 135,325 Mo. 698
• Decision Date: 11 June 1930
• Docket Number: 30179
• Parties: The State v. Charles L. Carlson, Appellant
• Court: United States State Supreme Court of Missouri

29 S.W.2d 135

325 Mo. 698

The State v. Charles L. Carlson, Appellant

No. 30179

Supreme Court of Missouri

June 11, 1930

Appeal from Jackson Circuit Court; Hon. Brown Harris Judge.

Affirmed.

Stratton Shartel, Attorney-General, and Henry Depping Assistant Attorney-General, for respondent.

(1) The indictment is sufficient. Sec. 3264, R. S. 1919; State v Brown, 267 S.W. 872; State v. Winkler, 309 Mo. 31; State v. Watson, 216 Mo. 424; State v. Miller, 234 S.W. 813. (2) Instruction 1 is proper. State v. Winkler, 309 Mo. 35. (3) Instruction 3 was based on evidence in the case. Miss Wiggins testified that she smelled liquor on appellant's breath. Appellant admitted his companion seemed "to have had a few drinks." A bottle containing alcohol was taken from appellant's companion. Furthermore, this instruction could have in no way prejudiced appellant. (4) The court did not err in admitting the testimony of witness Nachman to the effect that he took a bottle of alcohol from appellant's companion. One witness testified that appellant had liquor on his breath. It was proper to show these facts as an element showing culpable negligence. State v. Murphy, 23 S.W.2d 138; State v. Helpley, 279 S.W. 702. Appellant did not make a proper objection to the introduction of the bottle of alcohol in evidence. The objection was: "We object to all this because he is not charged with drunken driving." Under a charge of this kind evidence of intoxication is admissible as an element of carelessness and recklessness, and appellant did not have to be charged with drunken driving in order for such evidence to be admissible. (5) In appellant's motion for a new trial he complains because the court admitted the testimony as to the speed of appellant's car just prior to the accident, but a few blocks from where the accident occurred. This testimony was admissible. (6) Appellant complains because the State was permitted to introduce in evidence the testimony of witnesses whose names were not endorsed on the indictment. (a) A delay in endorsing witnesses' name on indictment is not error where no showing of injury is made. State v. Barnes, 289 S.W. 562. (b) The trial court has large discretion as to endorsing witnesses' names on indictment during trial. State v. Baker, 318 Mo. 542. (7) Defendant's Instruction K is not a proper instruction. It recognizes "partial" negligence and would preclude finding the defendant guilty if the prosecuting witnesses' negligence in any way contributed to the injury. Contributory negligence has no bearing on a case of this kind so long as the defendant is guilty of culpable negligence. Slight negligence on the part of the other party should not excuse his culpable negligence.

OPINION

White, J.

In the Circuit Court of Jackson County the appellant was found guilty of assaulting one Max Barnett, as charged in the indictment, by driving an automobile carelessly and with gross and culpable negligence against the automobile in which said Max Barnett was riding. The defendant's punishment was assessed at six months in the county jail and a fine of one thousand dollars. From the judgment following that verdict he appealed.

On or about July 20, 1928, late in the afternoon, the defendant was driving south on Wornall Road with a young woman passenger in a Marmon car. Driving south in front of him was a young woman named Gertrude Wiggins. At or near the intersection of Wornall Road and 77th Street Terrace defendant Carlson passed Miss Wiggins. Max Barnett in a stripped Ford, with two other boys, was coming on the Wornall Road from the south. The defendant, in the Marmon car, collided with the Ford car so violently that it wrecked the Ford. One of the boys testified that he was thrown over into a pasture. Barnett was knocked insensible and remained unconscious for six days. The defendant himself was injured on the side of his head and ear. The driver of the Ford car on seeing the approach of the Marmon car either turned off the slab or was knocked off by the impact of the Marmon car.

It is inferable from the evidence that the collision was caused by the reckless speed at which the defendant was driving. Miss Wiggins testified that the car came up behind her awful fast; that she was traveling about twenty or twenty-five miles an hour, and that the Marmon was going twice as fast as she was. One witness testified that the Marmon car looked like it was about to fly; another that it was going fifty or sixty miles an hour; another described it as "going at a terrific speed;" one witness who was passed by the Marmon car just before the collision said: "It just seemed like I was going backwards when he went by me, he was going so fast."

The defendant testified that he was forty-three years of age, married, had a family, and his business was general contractor. There was a woman in the car with him. She had in possession a bottle of liquor, and there was evidence as to a smell of liquor about the car, although no witness said that the defendant smelled of liquor. He testified that he didn't know the woman; that he had stopped at a cigar store, and was asked which way he was going; this woman was there, going in the same direction as he, and he was asked to take her in his car. There was evidence indicating that she was under the influence of liquor at the time of the collision. The defendant claimed that he was going at a moderate rate of speed, and that owing to the way the boys in the Ford were driving he was unable to avoid hitting them. No brief is filed here for appellant. The motion for new trial sets out certain alleged errors.

I. It is claimed that the court erred in refusing the court's peremptory instruction in the nature of a demurrer to the evidence. The theory seems to be that the evidence did not justify a conviction on the indictment and under Section 3264, Revised Statutes 1919. That section provides that if any person shall be maimed, wounded or disfigured or receive great bodily harm, etc., "under circumstances which would constitute murder or manslaughter if death had ensued the person by whose act, procurement or negligence such injury or danger of life shall be occasioned" shall be punished, etc. One who drives an automobile in reckless disregard of human...