State v. Daugherty

• Decision Date: 09 February 1959
• Docket Number: No. 1,No. 46995,46995,1
• Citation: 320 S.W.2d 586
• Parties: STATE of Missouri, Respondent, v. Bob G. DAUGHERTY, Appellant
• Court: Missouri Supreme Court

Page 586

320 S.W.2d 586

STATE of Missouri, Respondent, v. Bob G. DAUGHERTY, Appellant.

No. 46995.

Supreme Court of Missouri, Division No. 1.

Feb. 9, 1959.

Roy Coyne, Joplin, for appellant.

John M. Dalton, Atty. Gen., J. Burleigh Arnold, Asst. Atty. Gen., for respondent.

COIL, Commissioner.

Bob G. Daugherty, hereinafter called defendant, was convicted of manslaughter by culpable negligence under Section 559.070 RSMo 1949, V.A.M.S., and his punishment fixed at two years in the state penitentiary. Inasmuch as he has filed no brief on this appeal we look to the assignments of error contained in his motion for new trial. Prior to considering the contention that the trial court erred in failing to sustain a motion for judgment of acquittal on the ground that the evidence was insufficient to make a submissible case, we should determine the validity of new trial assignment 2 which relates to the admissibility of testimony disclosing the result of a test made of defendant's blood to determine its alcoholic content shortly after an automobile accident which resulted in the instant manslaughter charge.

An automobile driven by defendant collided with one driven by Clarence Bush at an intersection in Joplin about 9:30 p. m. on November 24, 1957, and one of the passengers in the Bush car died about 2:00 p. m., November 25, as a result of injuries sustained in that collision. Following the accident, defendant was conveyed to St. John's Hospital in Joplin and about 1:00 a. m. the following morning 10 c.c. of his blood were removed from a vein in his arm without his knowledge or consent. A sergeant of the state highway patrol was a state's witness for the purpose of disclosing the result of a test made of that blood to determine its alcoholic content. Upon objection by defendant that the blood tested had been obtained without the consent of the defendant and, we assume, the implied objection that defendant was thus being compelled to testify against himself, the state disclosed that it intended to offer state's exhibit 8 which purported to be defendant's written permission to make the blood test. Thereupon, the trial court, out of the hearing of the jury, conducted a voir dire examination as to the voluntariness of defendant's act in signing the purported permission. That document (exhibit 8), on the stationery of St. John's Hospital, Joplin, Missouri, dated November 25, 1957, was as follows: 'I, Robert Daugherty, 3414 Pearl, Joplin, Mo. hereby give permission to examine my blood for its alcoholic contents. This blood was taken 11-24-57 by a Technician of St. John's Hospital, at the request of Dr. N. H. Barnett. (Signed) Bob Daugherty. Witness: (Signed) Adrian Meacham.'

Adrian Meacham was a Joplin police sergeant. He testified that about 10:00 a. m. on the morning of November 25 he visited defendant in a room at St. John's Hospital where he asked for and received a statement as to the accident which had occurred the previous night. He then inquired whether defendant's blood which he told defendant had been taken theretofore might be examined for its alcoholic content and, upon being advised that defendant would sign a written permission to make such a test on that blood, he obtained exhibit 8 from a technician in the laboratory and returned to defendant's room where defendant signed the permission in the sergeant's presence. The sergeant's testimony made it clear that he advised the defendant of the purpose for which the blood sample had been taken and the purpose of the examination of that sample. He testified also that defendant seemed entirely rational in his responses to questions and was cooperative and understood what he was talking about, did not appear to be under the influence of drugs, and that he did not complain of pain, but did say that he thought he had sustained a hip injury.

Defendant testified on voir dire examination (he did not testify later within the hearing of the jury) that, while he thoght he remembered Sergeant Meacham being in his room, he did not remember signing exhibit 8 and that he had no recollection of any blood being taken from him or of having given his consent thereto, and that he did not remember any conversation with Sergeant Meacham.

The trial court admitted the testimony concerning the blood test, ruling that the voluntariness of the waiver was for the determination of the jury. We are of the opinion that the preliminary procedure followed by the trial court and its ruling on the admissibility of the questioned testimony were correct. Clearly, the testimony of the police sergeant as to his conversation with the defendant and his explanation to him concerning the fact of blood having been theretofore taken, the sergeant's requesting and defendant's granting permission to examine that blood for its alcoholic content, and the effect of the exhibit itself, executed by defendant in the presence of the sergeant, disclosing on its face that defendant was giving his permission to test his blood that had theretofore been taken, at the very least made a jury question as to the voluntariness of defendant's act in signing the exhibit. If voluntarily executed, there can be no question but that the exhibit constituted a waiver by defendant of his instant objection that the taking of his blood without his consent, testing it, and admitting testimony of the result of the examination, constituted a violation of his constitutional right not to be compelled to testify against himself. (We should make it clear that we do not, under the facts of this case, reach or in any wise rule the question of whether the testimony in question would have been admissible over proper objection in the absence of a waiver. Those interested might see Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed. 448, State v. Matsinger, Mo., 180 S.W. 856, 857, State v. Horton, 247 Mo. 657, 153 S.W. 1051, 1053[2, 3], and State v. Newcomb, 220 Mo. 54, 119 S.W. 405, 409.)

Our ruling herein is that state's exhibit 8 constituted a waiver by defendant of any complaint that the blood used for test purposes had been extracted without his consent and constituted express permission to examine that blood for its alcoholic content and, therefore, that the testimony concerning that test was admissible.

We note that although the trial court ruled that the matter of the voluntariness of defendant's execution of state's exhibit 8 was a jury question, that matter was not submitted to the jury. As noted, defendant did not take the stand in the jury's presence and thus defendant's testimony concerning the exhibit was not heard by the jury. In any event, however, the record shows that no request for an instruction on voluntariness was made by defendant, and, in the absence of such a request, defendant may not complain of the trial court's failure to have submitted that question. State v. Francies, Mo., 295 S.W.2d 8, 15[24, 25].

There was evidence from which the jury reasonably could have found the facts to be as they appear in this statement. About 9:30 on Sunday evening, November 24, 1957, a dry clear night, defendant, driving his automobile south on Schifferdecker Avenue, ran into the center of the left side of an automobile being driven east on 13th Street by Clarence Bush, at approximately the center of the intersection of those streets. Each street had a black-top surface and was about 23 feet wide. The approach from all directions to the intersection was unobstructed and, while the approach from the north was slightly downgrade, apparently the intersection itself was approximately level. Defendant approached and went into the...