State v. Feger, 47738

• Decision Date: 14 November 1960
• Docket Number: No. 2,No. 47738,47738,2
• Citation: 340 S.W.2d 716
• Parties: STATE of Missouri, Respondent, v. Donald Paul FEGER, Appellant
• Court: Missouri Supreme Court

Page 716

340 S.W.2d 716

STATE of Missouri, Respondent, v. Donald Paul FEGER, Appellant.

No. 47738.

Supreme Court of Missouri, Division No. 2.

Nov. 14, 1960.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 12, 1960.

Van Matre & Van Matre, Mexico, for appellant.

John M. Dalton, Atty. Gen., Fred L. Howard, Asst. Atty. Gen., for respondent.

STOCKARD, Commissioner.

Appellant was convicted of manslaughter and his punishment assessed at eight years in the penitentiary. The charge was based on culpable negligence in the operation of an automobile causing a three-car collision and the death of Dorothy Emma Milner. Appellant contends, among other things, that the evidence is insufficient to sustain a conviction for manslaughter.

About six o'clock in the evening of May 18, 1958 appellant joined Jesse Willis and Marjorie Jo Ann Morris at George and Jessie's Cafe in Mexico, Missouri. According to Marjorie Jo they each had a can of 3.2 beer, and then in appellant's automobile with him driving they started to the Knotty Pine Tavern located on Highway 54 about twelve miles east of town. At the eastern edge of Mexico they stopped at the '54 Club' and appellant drank another can of 3.2 beer. On the way to the Knotty Pine, Marjorie Jo noticed that the speedometer registered 100 to 110 miles an hour. Appellant 'pulled in' at the Knotty Pine, but they then decided to go to Wellsville, Missouri about fourteen miles away, and on the way appellant drove 'around the same speed.' At Martinsburg (about six miles past the Knotty Pine) appellant stopped and Jesse and appellant each had another can of 3.2 beer. In Wellsville 'just before sunset' appellant slid into the ditch while rounding a curve and had to obtain help from a passing motorist to get his automobile back on the road. The motorist testified that he could tell that appellant had been drinking but that he 'wasn't what you would call drunk or anything like that.' Appellant then went to the V.F.W. Club, and drank 'about half' of a bottle of 3.2 beer. After stopping at the Dew Drop Inn, where appellant offered to buy a 'couple of beers' for the motorist who had previously helped him get out of the ditch, appellant and his two companions started back toward Mexico. Jesse requested that he be permitted to drive because appellant 'was driving a little too fast.' Appellant at first declined but when they got out on the highway he permitted Jesse to drive until they reached the Knotty Pine. Appellant told Jesse he 'wasn't driving it [the automobile] quite fast enough.' At the Knotty Pine Jesse and Marjorie Jo got out of the automobile and appellant 'drove out onto the highway sort of rapidly' and started toward Mexico.

About two or three miles down the highway, while driving west toward Mexico at 85 to 90 miles an hour, appellant passed an automobile being operated by Walter Harrison. In passing he cut back into the right lane and ran off the right shoulder of the highway. An automobile was approaching from the west and Mr. Harrison 'jerked' his automobile to the right to provide more clearance. Appellant continued without reducing his speed and passed a pickup truck operated by Harry Cowley, and in doing so he 'pulled back into the right-hand lane * * * and then went off on the right-hand shoulder and pulled back across into the left-hand lane and drove a couple of cars [which were proceeding eastward] off the road.' He then drove on and 'was back and forth across the road, weaving.' When appellant was about 200 yards ahead of him, Mr. Cowley saw appellant's automobile 'silhouetted by headlights [of an approaching automobile] and he'd pull back and then I saw a cloud of dust and then the headlights went out.' Mr. Harrision saw 'the brake red lights come on' on defendant's automobile while it was on the south side of the highway (the eastbound lane), and then 'a cloud of dust or smoke in the outline of car lights that was travelling east.' From all the evidence the jury could find that appellant struck the rear of a Ford automobile proceeding west ahead of him deflecting it into the eastbound lane, and that the Ford and a Lincoln automobile proceeding eastward then collided head-on. Appellant's automobile ended up in the ditch on the north side of the highway and its front end was extensively damaged. The Ford ended up on the highway facing west in the south or eastbound lane and was badly damaged both in front and in the back. The driver of the Ford, Mr. Montie Milner, and the passenger, Dorothy Emma Milner, his wife, were killed instantly. The Lincoln automobile was in the ditch to the south of the highway, and was badly damaged on the front end and left front side. The Lincoln automobile immediately caught fire and burned quickly. After the accident, in the north or westbound lane of the highway there was a pile of debris consisting of 'broken parts of cars, such as chrome pieces, taillight pieces of red glass and foreign matter.' The Milner Ford was the only automobile which had damage to and breakage of the taillights. There were 'gouged out' places and 'scrapings' on the highway surface. Extending westward from this area of debris there were 'marks' for about 60 feet. The marks then 'divided up' and a set of marks 'veered off to the north' to appellant's Chrysler in the north ditch. Another set of marks led 'in a snakelike direction' to a second pile of debris located in the eastbound traffic lane and 222 feet west of the first area of debris. This second pile of debris consisted of dirt, grease, gasoline and metal. From this area of debris the marks which had approached in a 'snakelike' manner 'went back in an easterly direction several feet [53 feet] to where the [Milner] Ford came to rest.' The Lincoln was 'directly opposite the Ford' to the south, and there were marks from the second area of debris leading to the Lincoln. Appellant told a highway patrolman at the scene that 'These cars ran together and then I hit one of them.'

There was considerable evidence as to whether or not appellant was drunk. There was testimony that his walk 'was unsteady;' that he staggered and crossed his feet when he walked; that his eyes were not completely open; and that alcohol could be smelled on his breath. Walter Harrison testified that he could not say whether appellant was or was not intoxicated. Appellant was taken to the hospital at Mexico, and while the laboratory technician was taking X rays he repeatedly fell asleep and did not respond to her instructions. She could smell alcohol on appellant, but it was her opinion that while he was not drunk he was under the influence of alcoholic beverages. Appellant did not testify, and his evidence pertained primarily to the question of his intoxication.

In six of his twenty-six points appellant contends the trial court erred in failing to direct a verdict of acquittal. He assigns as reasons therefor that (1) there was no 'direct evidence' as to any act on the part of appellant which would prove that he caused or contributed to cause the accident; (2) all the evidence 'failed as a matter of law to prove beyond a reasonable doubt' that appellant committed the crime of manslaughter because the state's case was 'founded on an inference which was based on another inference, with neither inference being proven by direct evidence;' (3) the State failed to establish the corpus delicti; and (4) the State failed to establish the criminal agency of appellant because there was no evidence that (a) the tire marks and debris on the pavement were from the cars in the accident or that the marks and debris were not there before the accident; (b) of the manner of operation and the direction of travel of the Milner Ford automobile; (c) of any act of negligence on the part of appellant 'in relation to the collision' of appellant's automobile and the Milner Ford; (d) that Dorothy Emma Milner was alive at the time of the collision; or (e) that the death did not result from an unavoidable accident.

In a prosecution for homicide the State has the burden to establish the guilt of the defendant and every element of the offense charged, including the corpus delicti. State v. Colbert, Mo.Sup., 226 S.W.2d 685. The corpus delicti consists of two elements; the death of a human being and the criminal agency of another in causing the death. State v. Meidle, Mo.Sup., 202 S.W.2d 79; State v. Colbert, supra. 'The rule is well established * * * that negligence to be deemed culpable within the meaning of the statute and, therefore, criminal, is something more than ordinary, common-law, or actionable negligence. The culpability necessary to support a manslaughter charge must be so great as to indicate a reckless or utter disregard for human life.' State v. Schneiders, 345 Mo. 899, 137 S.W.2d 439; State v. Morris, Mo.Sup., 307 S.W.2d 667; State v. Ruffin, 344 Mo. 301, 126 S.W.2d 218. On the other hand, in the Ruffin case it was said that a defendant could not be convicted of manslaughter merely because he had been drinking, and that the doctrine of res ipsa loquitur could not be applied to authorize a conviction of manslaughter because an unexplained accident occurred.

In this case there was direct evidence that appellant started out on a trip operating his automobile on the public highways while drinking (whether or not he was drunk within the meaning of that term as understood by the witnesses) at speeds in the neighborhood of 100 miles per hour; that his automobile slid into the ditch at one time and that his passenger requested permission to drive because appellant was driving too fast; that he again took over the operation of his automobile, and drove at an excessive speed after dark in a reckless and dangerous manner in that he did not have sufficient control of his automobile to pass other automobiles properly and without endangering others on the highway; and that he continued to drive in such reckless manner to the point of the collision...