State v. Dougherty
| Decision Date | 07 January 1949 |
| Docket Number | No. 40892.,40892. |
| Citation | 216 S.W.2d 467 |
| Parties | STATE OF MISSOURI, Respondent. v. JOHN F. DOUGHERTY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Charles Circuit Court. — Hon. Theodore Brucre, Judge.
REVERSED AND REMANDED.
Wm. Waye, Jr., Dewey S. Godfrey and Rudolph K. Schurr for appellant.
(1) The information in this case was based upon Subdivision f of Section 8401, R.S. of Missouri, 1939. The charge is a felony. Therefore, in construing this statute it must be construed strictly as to those portions which are against the defendant and liberally as to those which are in his favor. And all doubt as to the meaning of this statute must be ruled in favor of the defendant. State v. Taylor, 133 S.W. (2d) 336; Arthur v. Kaiser, 169 S.W. (2d) 47; State v. Bartley, 263 S.W. 95, 304 Mo. 58. (2) Subdivision f of Section 8401, R.S. Missouri 1939, provides that no person operating a motor vehicle on the highways, knowing that an injury has been caused to a person or damage has been caused to property, shall leave the place of said injury without stopping, giving his name, etc., to the injured party or to a police officer, etc. When the defendant gave his name, etc., to the driver of the taxi involved in the accident, he did everything that he was required to do and under the provisions of said subdivision f he was not required to give his name, etc., to any passenger who might be in the taxi. The word "party" as used in the statute means the person with whom the collision occurred and does not include the passenger in such taxi. 47 C.J., p. 14; State v. Bowser, 145 Pac. 135. (3) The purpose of the notice required by the statute involved is to establish the identity of the operators of the automobile causing the injury or damage, so that the person injured or damaged knows with whom to deal in matters growing out of the accident. And when defendant gave Sneed, the driver of the taxi, his license number, name and address, etc., he established his identity and did everything this statute required him to do. State v. Clark, 290 N.W. 237; Runyon v. State, 38 N.E. (2d) 235. (4) In this case the defendant did not rest with notice to the driver of the taxi involved in the accident, but within a very short time reported the accident to the coroner of the City of St. Louis. The coroner lived within about six blocks of the accident and he was the nearest judicial officer to the scene of the accident. Notifying the coroner, as the defendant did in this case, was full compliance with this statute and a complete defense in this case. Houts v. McCluney, 102 Mo. 13; Grenshaw v. O'Connell, 150 S.W. (2d) 489; Queathan v. Modern Woodmen, 148 Mo. App. 33; People v. Jackson, 191 N.Y. 293, 84 N.E. 65; Gould v. State, 46 N.Y.S. (2d) 313; State v. Allison, 153 Pac. (2d) 141. (5) But even if the defendant was required to notify every passenger in the taxi, who was injured, yet before he can be convicted of failure to notify such person he must know that such person is injured. And the word "knowing" as used in the statute means actual knowledge. And in this case the State wholly failed to prove that the defendant knew that Miss Schmich was injured in this accident. State v. Ehrenberg, 234 S.W. 829; Dubach v. Dysart, 184 Mo. App. 702; White v. Poole, 272 S.W. 1021; People v. Kudick, 66 N.Y.S. (2d) 826; People v. Hekala, 61 N.Y.S. (2d) 718; Herchinbach v. Commonwealth, 38 S.E. (2d) 328. (6) Actual knowledge cannot be inferred in this case, because the State wholly failed to prove any facts or circumstances from which such knowledge on the part of the defendant might have been inferred. White v. Poole, 272 S.W. 1021; People v. Hekala, 61 N.Y.S. (2d) 718; Herchinbach v. Commonwealth, 38 S.E. (2d) 328. (7) Instruction 4, given to the jury at the request of the State, was not supported by the evidence in that the evidence wholly failed to show that the defendant knew that Miss Schmich was injured in the collision referred to in the evidence and the State wholly failed to produce any evidence to show any fact or circumstance from which the injury to her could have been inferred. And an instruction not supported by evidence is error. State v. Painter, 44 S.W. (2d) 79; State v. Mundy, 76 S.W. (2d) 1088; State v. Farmer, 111 S.W. (2d) 76; State v. Busch, 119 S.W. (2d) 265. (8) Instruction 4. given to the jury at the request of the State, was an instruction covering the whole case. Therefore, this instruction should have embodied the defense in this case. And failure to do so makes this instruction erroneous. State v. Busch, 119 S.W. (2d) 1265; State v. Collins, 237 S.W. 516; State v. Gabriel, 256 S.W. 765, 301 Mo. 365; State v. Glass, 300 S.W. 691, 318 Mo. 611; State v. Nichols, 130 S.W. (2d) 485. (9) Instruction 5, given to the jury by the court at the request of the State, failed to embody the defense in this case, namely, that the defendant did stop and that he gave Sneed his license number and address, etc., and the instruction should have told the jury that if they found those facts, then they should acquit the defendant. Cases cited under Point (8). (10) Instruction 5, given to the jury at the request of the State, was erroneous in that there was not evidence in the case to support it. The State wholly failed to show the defendant knew that Miss Schmich had been injured in the collision and there were no facts or circumstances in evidence in the case from which such knowledge could have been inferred. The giving of this instruction was reversible error. Cases cited under (8). (11) The information in this case contained two counts, and if both counts were submitted to the jury, then the general verdict rendered by the jury was erroneous. This verdict was not responsive to the issues submitted and it did not show upon which count the defendant was found guilty. Such a verdict cannot stand. State v. Hinton, 253 S.W. 722; State v. Mitnick. 96 S.W. (2d) 43; State v. Page, 192 S.W. 428; State v. Meadows, 55 S.W. (2d) 959; State v. Young, 215 S.W. 499; State v. Knechtel, 164 S.W. (2d) 648. (12) Instruction D-3, requested by the defendant, was refused by the court. This instruction told the jury that if they found that immediately after the accident the defendant went to the home of Tom Callanan, the coroner of the City of St. Louis, and reported this accident to him, then the jury should acquit the defendant. Tom Callanan, the coroner of the City of St. Louis, was the nearest judicial officer to the scene of the accident, and this instruction properly declared the law and should have been given. Houts v. McCluney, 102 Mo. 13; Crenshaw v. O'Connell, 150 S.W. (2d) 489; Queathan v. Modern Woodmen, 148 Mo. App. 33; People v. Jackson, 191 N.Y. 293, 84 N.E. 65; Gould v. State, 46 N.Y.S. (2d) 313; State v. Allison, 153 Pac. (2d) 141.
J.E. Taylor, Attorney General, and Robert R. Welborn, Assistant Attorney General for respondent.
(1) The verdict is in proper form and is responsive to the issues in the case. Secs. 8401(f), 8404(c) R.S. 1939; State v. Link, 315 Mo. 192, 286 S.W. 12; State v. McDonald, 85 Mo. 539; State v. Librach, 270 S.W. 284; State v. Mitts, 315 Mo. 1320, 289 S.W. 935; State v. Bray, 246 S.W. 921. (2) The court did not err in refusing an instruction in the nature of a demurrer offered by the defendant at the close of all the evidence. State v. Harris, 324 Mo. 223, 22 S.W. (2d) 802; People v. Huber, 64 Cal. App. 353, 221 Pac. 695; Swope v. State, 220 Ind. 40, 39 N.E. (2d) 947; State v. Brown, 226 N.C. 681, 40 S.E. (2d) 34; Commonwealth v. Lewis, 286 Mass. 256, 190 N.E. 513; Sec. 8401(f) R.S. 1939; In re Dean's Estate, 350 Mo. 494, 166 S.W. (2d) 529; Secs. 652, 653 R.S. 1939; State v. Plotner, 283 Mo. 83, 222 S.W. 767; Crawford on Statutory Construction, 465; Ex parte Kneedler, 243 Mo. 632, 147 S.W. 983; People v. Rosenheimer, 209 N.Y. 115, 102 N.E. 530; State v. Harris, 212 S.W. (2d) 426; State v. Hudson, 314 Mo. 599, 285 S.W. 733; State v. Brown, 226 N.C. 681, 40 S.E. (2d) 35; Sec. 8401(f), R.S. 1939; Sec. 1, Art. 6, Mo. Const. of 1875; Sec. 1, Art. 5, Mo. Const. of 1945; State ex rel. v. Andrae, 216 Mo. 617, 116 S.W. 561; Woods v. State, 15 Ala. App. 251, 73 So. 129; Ex parte Kneedler, 243 Mo. 632, 147 S.W. 983; Bevil v. State, 139 Tex. Cr. 513, 141 S.W. (2d) 362; People v. Curtis, 225 N.Y. 519, 122 N.E. 623. (3) The court did not err in giving instructions 4 and 5. Authorities cited under Point (2), supra. (4) The court did not err in giving Instruction 3. State v. Hedgpeth, 311 Mo. 452, 278 S.W. 740; State v. Neely, 56 S.W. (2d) 64; State v. Johnson, 234 S.W. 794; State v. Howell, 117 Mo. 305, 23 S.W. 263. (5) The court did not err in giving Instruction 6. State ex rel. v. Metropolitan Life Ins. Co., 157 S.W. (2d) 217; State v. Citius, 331 Mo. 605, 56 S.W. (2d) 72. (6) The court did not err in refusing defendant's requested instructions numbered D-3, D-4, D-5, D-6, D-7, D-8 and D-9. Authorities cited under Point (2), supra.
Under Section 8401(f), R.S. Mo. 1939, defendant was convicted of feloniously leaving the scene of accident and injury. He was sentenced to one year imprisonment in the county jail and to pay a fine of one hundred dollars ($100.00). Section 8404(c), R.S. Mo. 1939. The cause originated in the City of St. Louis, but went to St. Charles County on change of venue. Defendant appealed.
Briefly, the State's case tended to show that about 12:15 A.M., December 15, 1946, a gray colored automobile travelling north on Kingshighway in the City of St. Louis struck a Yellow taxicab in the intersection of Kingshighway and Easton Avenue. The taxicab, travelling east on Easton, was damaged and Irene Schmich, the sole passenger in the taxicab, and James J. Sneed, Jr., the operator, sustained some injuries. The gray colored automobile was damaged in the collision, did not stop at the immediate scene of the accident, but turned east on Easton Avenue and moved slowly away. Shortly after the...
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