State v. Carter
| Decision Date | 03 May 1938 |
| Docket Number | 35856 |
| Parties | The State v. Carl Carter, Appellant |
| Court | Missouri Supreme Court |
Appeal from Carter Circuit Court; Hon. Will H.D. Green Judge.
Affirmed.
Roy McKittrick, Attorney General, and Aubrey R. Hammett Jr., Assistant Attorney General, for respondent.
(1) The court properly admitted evidence of intoxication of the defendant as same is competent as to the defendant's negligence. State v. Campbell, 84 S.W.2d 622; State v. Coulter, 204 S.W. 5. (2) The court properly overruled the demurrer at the close of the State's case for the reason that the defendant failed to stand on his demurrer and thereafter offered evidence in his own behalf. State v. Kelly, 107 S.W.2d 20. (3) The court properly overruled the demurrer at the close of the whole case. State v. Scheufler, 285 S.W. 421. (4) Assignments of error in the motion for new trial that are not set out with particularity preserve nothing for review by this court. State v. Frazier, 98 S.W.2d 714; State v. McKeever, 101 S.W.2d 33.
On May 27, 1935, an information was filed in the Circuit Court of Howell County, Missouri, charging appellant with manslaughter in the killing of Louie Peterman through culpable negligence while operating a truck on December 24, 1934. On change of venue the case was sent to the Circuit Court of Carter County, where the trial resulted in finding appellant guilty, and his punishment was assessed at two years in the State penitentiary. Appellant has duly appealed from the judgment and sentence of that court.
I. Appellant has not favored us with a brief, therefore, we will examine his assignments of error in his motion for a new trial. His first assignment of error is that his demurrer at the close of the evidence should have been sustained. There was a sharp conflict in the evidence, but we will relate that most favorable to the State to see if it is sufficient to sustain the verdict.
The evidence of the State tends to show that on December 24, 1934, about five-thirty P.M., there was a collision on State Highway No. 80, about fifteen miles west of West Plains, Missouri, between a truck driven by appellant and a Chrysler coupe driven by Louie Peterman. Riding in the cab of the truck were appellant, his brother Cecil Carter, Leonard Williams and Janie Robbins, and several persons were riding on the body of the truck. In the coupe were the deceased, his father, mother and a child, and two children were riding on the right running board. In the collision Peterman received a broken neck and a severe fracture of the skull which caused instant death. Some distance west of the place where the collision occurred the highway curves at the top of a hill, and from this curve it runs in an easterly direction. The coupe made the curve and started down the hill just as the truck was beyond the foot of it, and its speed was estimated at fifteen to twenty miles per hour. The truck was going between fifty and sixty miles per hour and was traveling in the center of the highway. There was evidence that it was not traveling straight but seemed to be zigzagging first to one side and then the other; that as it approached the coupe it seemed to turn right toward it and then as it tried to turn out it hit the coupe; that at no time before the collision the speed of the truck was slackened; and that the coupe was on the right side of the highway, only a few inches from the shoulder. The highway was twenty-four feet wide at this point. The impact of the collision was so terrific that the top of the coupe was completely sheared off, it landing close to the ditch on the south side of the road. The father of the deceased was thrown against the bank on the south side of the road, and the two children were thrown back of the car on the same side. The mother of the deceased was found under the coupe, and the deceased remained in his seat back of the steering wheel. An examination of the tracks of both the coupe and truck were made the following morning, and the witness who made the examination testified that the tracks of the coupe, from the top of the hill to the point of collision, were on the right side of the road, while the tracks of the truck, from the bridge at the foot of the hill to the point of collision, showed that it was on the left side of the road.
The evidence further disclosed that a...
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