State v. Cutshall

• Decision Date: 10 June 1968
• Docket Number: No. 2,No. 53110,53110,2
• Citation: 430 S.W.2d 173
• Parties: STATE of Missouri, Respondent, v. Robert W. CUTSHALL, Appellant
• Court: Missouri Supreme Court

Page 173

430 S.W.2d 173

STATE of Missouri, Respondent, v. Robert W. CUTSHALL, Appellant.

No. 53110.

Supreme Court of Missouri, Division No. 2.

June 10, 1968.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 8, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, Don Anton, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Robert G. Duncan, Lewis E. Pierce, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.

PRITCHARD, Commissioner.

This is the second appeal from a conviction of a charge of manslaughter against appellant. The occurrence out of which the charge arose was an authomobile collision on the Paseo Bridge over the Missouri River in Clay County, Missouri, on January 17, 1965. By reason of the collision, one Arthur L. Thompson died. The original conviction was reversed because of the failure of the court to give an accident instruction which was supported by appellant's evidence. It was then ruled that the state made a submissible case of manslaughter, and that point is not here again raised. The facts may be found in the original opinion, State v. Cutshall, Mo., 408 S.W.2d 94.

Appellant's points are directed toward the giving of instructions and the failure to give certain of his offered instructions. The first point deals with Instruction No. 7 which is as follows:

'The Court instructs the Jury that culpable negligence within the meaning of the law is the omission on the part of one person to do some act under given circumstances, which a very careful and prudent person would do under like circumstances, showing on the part of such person a careless or reckless disregard for human life or limb, or the doing of some act under given circumstances which a very careful and prudent person under like circumstances would not do, showing on the part of such person a careless or reckless disregard for human life or limb, by reason of which omission or action another person is directly in danger in life or bodily safety.' (Italics added.)

The italicized words 'very careful and prudent person' in this instruction are attacked. It is said that the wording 'very careful and prudent person' is substituted for the continuously approved instruction wording 'An ordinarily careful and prudent person.' State v. Studebaker, 334 Mo. 471, 66 S.W.2d 877, 879; State v. Sawyers, 336 Mo. 644, 80 S.W.2d 164, 166(2); State v. Hinojosa, Mo., 242 S.W.2d 1, 9; State v. Hughey, Mo., 404 S.W.2d 725, 732(10); and State v. Zerban, Mo., 412 S.W.2d 397, 403. It is argued that 'There is a vast difference between ordinary care and the care used by a 'very careful and prudent person.' The latter is the definition of the highest degree of care used in Missouri Approved Jury Instruction M.A.I. 11.01.' It is further argued that a higher degree of care was placed upon appellant in this case than was placed upon him by law.

State v. Studebaker, supra, discusses some of the older cases which were held to have erroneously and prejudicially defined the term 'culpable negligence' which is found in the manslaughter statute, § 559.070, RSMo 1959, V.A.M.S., 'Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.' In the there cited case of State v. Millin, 318 Mo. 553, 300 S.W. 694, the defining instruction was: "Culpable negligence is the omission to do something which a reasonable, prudent and honest man would do, or the doing something which such a man would not do under all the circumstances surrounding each particular case." This instruction was condemned in the Millin case, the court saying it was "nothing more than a definition of ordinary negligence" and that "it entirely omits the element that the life or limb of another person is endangered by such act, or failure to act." (Italics added.) Loc. cit. 66 S.W.2d 879. In State v. Murphy, 324 Mo. 183, 23 S.W.2d 136, and in State v. Studebaker, supra, instructions on culpable negligence were held to be correct which had in them the additional requirement that 'the negligent act or omission must be one showing a careless or reckless disregard for human life or limb.' (See 66 S.W.2d loc.cit. 880.)

In State v. Sawyers, supra, the instruction was held bad because 'While it says that culpable negligence must be such as to endanger the life or bodily safety of another, that is not sufficient to comprehend gross carelessness or recklessness incompatible with a proper regard for human life. One may endanger the life or bodily safety of another through ordinary negligence only, but that degree of negligence is not sufficient to render one criminally responsible.' Loc. cit. 80 S.W.2d 166(2). State v. Hughey, supra, held that the instruction there properly defined 'culpable negligence' and the instruction was sufficient which went on 'omitting to do some act under those circumstances which an ordinarily careful and prudent person under like circumstances would have done, or doing an act which such careful and prudent person would not have done, showing by such omission or act a reckless disregard and utter indifference for human life or limb, by reason of which the deceased Carl boy was endangered and received injuries resulting in his death.' 404 S.W.2d loc.cit. 732, 733.

In the case of State v. Bolle, Mo., 201 S.W.2d 158, 161, it was said, 'The Court also gave an instruction informing the jury that even if it found beyond a reasonable doubt that the defendant failed to exercise ordinary care it must acquit the defendant unless his negligence 'was of such reckless and wanton character as to convince you, beyond a reasonable doubt and to a moral certainty, of the Defendant's utter indifference to the life of one which was killed as a result thereof.' The instructions fully protected the defendant.'

In State v. Hinojosa, supra, the matter was further developed in disposing as without substance the contention that the words "such omission or action showing on the part of such person a reckless disregard for human life or limb" in no way qualified or limited the preceding clause defining ordinary negligence, but, to the contrary, advised the jury that they might infer a reckless disregard for human life or limb from acts of ordinary negligence. 242 S.W.2d loc.cit. 9. It was there further said that the instruction was a rescript of the instruction in the Studebaker case, the opinion of which says "defendant got all he was entitled to, if not more * * *."

There are cases and authority in addition to those above cited (which hold in effect that ordinary negligence will not support a conviction of manslaughter, unless there exists culpability) which say that which is contained in State v. Ruffin, 344 Mo. 301, 126 S.W.2d 218, 222(1, 2), 'It is well settled by our decisions that the culpability necessary to support a manslaughter charge must be so great as to indicate a reckless or utter disregard for human life. (Citing cases.) And when the case involves culpable negligence in operating a motor vehicle on a public highway, the standard by which the culpability is measured is not 'the highest degree of care' (exacted by the Motor Vehicle Act), but is what a reasonably careful and prudent person would have done or not done in the circumstances, as contemplated by Sec. 3988, supra, in the criminal code. (Citing cases.) The question before us is whether under these rules and the evidence in this record the appellant was guilty of criminal negligence.' See also 61 C.J.S. Motor Vehicles § 659, p. 772; 65A C.J.S. Negligence § 306, p. 1073 et seq. But what is meant by the Ruffin case and the abovecited authority is that either the failure to exercise the highest degree of care or the failure to exercise ordinary care (see additionally State v. Simler, 350 Mo. 646, 167 S.W.2d 376, 382(2--8)), standing alone, is insufficient to support a conviction of manslaughter. There must be existent facts showing the applicability of the key words of the case-defined term 'culpable negligence' and those are: such facts or circumstances 'showing on the part of such person a careless or reckless disregard for human life or limb.' State v. Studebaker, supra, loc. cit. 66 S.W.2d 879. Instruction No. 7, about set out, contains these key words, 'showing on the part of such person a careless or reckless disregard for human life or limb.' The jury was thus instructed that something more than ordinary negligence or the care of a very careful and prudent person (which is the definition of the highest degree of care required by § 304.010, RSMo 1959, V.A.M.S., as set forth in MAI 11.01) necessary to support a case of civil liability would be required as a finding prerequisite to a conviction of manslaughter. With respect to the operation of a motor vehicle upon the public highways of this state, the Legislature has set the standard as the exercise of the highest degree of care under said § 304.010. It follows then that no higher degree of care was placed upon appellant in this case than was placed upon him by law. The employed preliminary words 'very careful and prudent person' could not have placed any additional degree of care upon appellant than to so conduct himself, in his motor vehicle on the public highway, as not carelessly or recklessly to disregard human life and...