State v. Graff, No. 44218.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtKINTZINGER
Citation282 N.W. 745
PartiesSTATE v. GRAFF.
Docket NumberNo. 44218.
Decision Date13 December 1938

282 N.W. 745

STATE
v.
GRAFF.a1

No. 44218.

Supreme Court of Iowa.

Dec. 13, 1938.


Appeal from District Court, Floyd County; Henry N. Graven, Judge.

Defendant is accused of the crime of manslaughter in connection with the unlawful killing of Helen Despard on April 7, 1937, in Floyd County, Iowa. He pleaded not guilty and the case was tried to a jury. At the close of plaintiff's testimony and again at the close of all the testimony, defendant made a motion for a directed verdict. This was overruled and the jury returned a verdict of guilty. Thereafter defendant filed a motion in arrest of judgment and for a new trial. These motions were both overruled and defendant appeals.

Affirmed.

James W. Taylor, of Waterloo, and John F. Droz and W. G. Henke, both of Charles City, for appellant.

John H. Mitchell, Atty. Gen., Buell McCash, Sp. Asst. Atty. Gen., and Jens Grothe, Co. Atty., of Charles City, for the State.


KINTZINGER, Justice.

About one o'clock in the morning of April 7, 1937, Helen Despard, in company with two other women and three men, was traveling in a Tudor Ford car between Charles City and Mason City in a westerly direction on Highway No. 18. When they reached a point within the corporate limits of Nora Springs, a town between Charles City and Mason City, Helen Despard requested the driver of the car to stop as she had to answer a call of nature. The car in which she was riding was owned and driven by one Anderson.

The Anderson car had been traveling on the north or right side of the pavement, and when it stopped it was standing parallel to and near the north or right edge of the pavement. Miss Despard was seated in the middle of the rear seat; and, as the car had only one door on the right-hand side, a Mr. Ford, who was sitting on the right side of the front seat, and Mr. Martin, who was sitting on the right side of the rear seat, alighted first to enable Miss Despard to get out.

Miss Despard walked around to the right rear of the Anderson car. There is testimony tending to show that as she reached the right rear of the Anderson car, a car driven by the defendant Graff, approaching from the east and traveling west, crashed into the rear of the Anderson car, catching Miss Despard between the rear bumper of the Anderson car and the front bumper of the defendant's car. As a result of the collision, one of her limbs was almost completely severed and the bones in the other severely crushed, as a result of which she died soon afterwards.

Defendant was alone in his car at the time of the collision and did not testify at the trial. His car was following the Anderson car and was also traveling on the right or north side of the pavement at a speed of about 35 or 40 miles per hour. There was a slight hill or grade in the pavement east of where the Anderson car was standing; it was a dark night and had been raining. There is testimony tending to show that the visibility was poor, although it was not raining and there was no fog at the time. The evidence shows that the head and tail lights on the Anderson car were fully lighted and that it could be seen from the top of an elevation in the road for a distance of over 400 feet easterly, on a straight line, with no obstructions between. From the top of this elevation the highway runs straight west to the Main Street of the town of Nora Springs. From the top of this elevation the street lights of the town and the light of a filling station were visible all the way into the town.

Defendant had driven from Charles City to Marble Rock with a man named Rex, about eleven o'clock on the night of April 6th. Rex testified that defendant had mentioned something about going to Nora Springs. Marble Rock is about 18 miles southwest of Charles City. When defendant left Marble Rock for Nora Springs he was alone. The record is silent as to defendant's whereabouts between 11 p. m., April 6th, and 1 a. m., April 7th, when the collision occurred.

Appellant in his motion for a directed verdict and a new trial contends that the court erred in submitting the case to the jury, chiefly upon the ground that the evidence was wholly insufficient to sustain a verdict of manslaughter, and that at most the defendant was guilty of only an act of negligence. Appellant's motions were overruled, and defendant appeals.

The lower court in its ruling on the motion in arrest of judgment and for a new trial filed a memorandum ruling, which sets out a clear and full statement of the evidence as shown by the record in this case. In substance the court says:

“The collision was a rear-end collision, the car operated by the defendant crashing

[282 N.W. 747]

into the rear of the Anderson car. The Anderson car was what was known as a two-door (Tudor) coach, which necessitated raising up one of the front seats to enable the passengers in the back seat to get out. * * *

Anderson, Martin and Ford, on the evening of April 6th, 1937, went to a place known as ‘Wright's Inn,’ located west of Charles City a short ways, on Highway No. 18. While there they met the three young ladies referred to. The six drank some beer together and then got into the Anderson car, and at around one o'clock a. m. started to drive westerly towards Mason City. Nora Springs is about twenty miles west of Charles City. * * *

The street at the scene of the collision constituted an extension of U. S. Highway No. 18 within the town of Nora Springs and runs straight east and west, was paved eighteen feet wide, with shoulders about two feet wide on each side which sloped into a ‘gutter’ or ‘ditch’. At the time the Anderson car was stopped it had been proceeding in a westerly direction, on the right or north side of the paving. About four hundred fifty feet east of where the Anderson car was stopped there was a raise in the street of nine or ten feet, which raise then sloped gradually to the west.

All the street lights of the town, the nearest of which was about 420 feet from where the Anderson car stopped, were lit, including the night light at a filling station.

From where a person came over the hill or rise mentioned, the street proceeded in a straight westerly direction from that point to Main Street several blocks away, without any obstruction to the view. It was a cloudy night, and it had been raining off and on, but it was not raining at the time of the collision. The shoulders were described as being soft and muddy. There was considerable conflict as to the visibility at the time of the collision, but there was apparently no fog at the time.

The Anderson car, which was traveling on the right or north side of the pavement, stopped at a point about 450 feet west and beyond the brow of the hill or the raise, with the right side of the car at or near the extreme north edge of the paving, and with the car parallel with that edge, with the driver sitting at the wheel. The tail light was burning brightly, and the headlights were on and burning brightly. As Mr. Martin got out of the car he stepped onto the shoulder of the street, on the north side of the car, near the middle of the car, and was standing there when the collision occurred.

Helen Despard, after getting out of the car, walked along the right of the car to the rear, and was last seen by Martin just before the collision, standing at the right rear of the car with her back visible, and Mr. Ford was standing somewhat to the north and west of Helen Despard. Shortly after the stopping of the Anderson car, the defendant's car, traveling in a westerly direction, came over the raise heretofore referred to, traveling at the rate of thirty-five to forty miles an hour. Whether Helen Despard intended to go to the south side of the pavement to relieve herself, and stopped on the pavement at the right rear of the car, off from the muddy shoulder, waiting for the defendant's car to pass, as was suggested by the State, or what her intended movements were, does not clearly appear, but according to Mr. Martin's testimony she had not proceeded any further than the right rear of the car when she was hit by the defendant's car. The Anderson car was of the make or model that had only one tail light which was at the left rear.

The defendant's car came in a ‘straight course, neither right or left,’ in a ‘line parallel with the Anderson car,’ without slowing up or putting on the brakes, and hit the Anderson car ‘right square in the back.’

At the time of the collision there were no other cars traveling from the east on the south side of the pavement, and the jury could find that there were no diverting circumstances.

The defendant's car apparently caught Helen Despard between the rear bumper of the Anderson car and the front bumper of the defendant's car, and sheared or clipped off one leg and mashed the other, both below the knees. She was thrown forward at the same time and her head made a dent in the body, to the right of the back window of the Anderson car. The blood and bone on the Anderson rear bumper showed she was hit ‘pretty close’ to the right end of the rear bumper of the Anderson car. By the collision both Mr. Ford's legs were broken below the knees, and Miss Sullivan in the front seat of the car was knocked temporarily unconscious.

[282 N.W. 748]

The defendant's nose was cut and injured in the collision.

It appears from the testimony of the doctor that while both of Ford's legs were broken, the flesh was not crushed. By the collision Mr. Ford was thrown into the ditch at the side. It was apparent from the nature of the injuries that Mr. Ford's legs were not caught between the two bumpers. Since the blood and bone near the right end of the Anderson bumper was that of Miss Despard, because Mr. Ford's legs were not broken open, and Mr. Ford's legs were not caught between the two bumpers, his blow could have come either by defendant's front bumper extending beyond the Anderson's rear bumper at the time of the impact; or by being hit a glancing blow by the end of the defendant's front bumper before it...

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2 practice notes
  • State v. Graff, No. 44218.
    • United States
    • United States State Supreme Court of Iowa
    • February 13, 1940
    ...of manslaughter. Trial was had to a jury, resulting in his conviction and sentence. Defendant appeals. Affirmed. Superseding opinion in 282 N.W. 745. MITCHELL and RICHARDS, JJ., dissenting. [290 N.W. 98]Fred D. Everett, Atty. Gen., Weston E. Jones, Co. Atty. of Charles City, and Jens Grothe......
  • Johnson v. Purcell, No. 44360.
    • United States
    • United States State Supreme Court of Iowa
    • December 13, 1938
    ...authority of the same law he professes to practice.” We see no legal obstacle in the way of the district court taking cognizance of and [282 N.W. 745]determining such an issue. It is the judgment of this court that the writ should be and is quashed and annulled. Writ annulled.SAGER, C. J., ......
2 cases
  • State v. Graff, No. 44218.
    • United States
    • United States State Supreme Court of Iowa
    • February 13, 1940
    ...of manslaughter. Trial was had to a jury, resulting in his conviction and sentence. Defendant appeals. Affirmed. Superseding opinion in 282 N.W. 745. MITCHELL and RICHARDS, JJ., dissenting. [290 N.W. 98]Fred D. Everett, Atty. Gen., Weston E. Jones, Co. Atty. of Charles City, and Jens Grothe......
  • Johnson v. Purcell, No. 44360.
    • United States
    • United States State Supreme Court of Iowa
    • December 13, 1938
    ...authority of the same law he professes to practice.” We see no legal obstacle in the way of the district court taking cognizance of and [282 N.W. 745]determining such an issue. It is the judgment of this court that the writ should be and is quashed and annulled. Writ annulled.SAGER, C. J., ......

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