State v. Herring

• Decision Date: 05 November 1973
• Docket Number: No. KCD,KCD
• Citation: 502 S.W.2d 405
• Parties: STATE of Missouri, Respondent, v. Walter James HERRING, Appellant. 26300.
• Court: Missouri Court of Appeals

Page 405

502 S.W.2d 405

STATE of Missouri, Respondent, v. Walter James HERRING, Appellant.

No. KCD 26300.

Missouri Court of Appeals, Kansas City District.

Nov. 5, 1973.

Motion for Rehearing and/or Transfer Denied Dec. 3, 1973.

Michael Paul Harris, St. Joseph, for appellant.

John C. Danforth, Atty. Gen., David Robards, Asst. Atty. Gen., Jefferson City, for respondent.

Before DIXON, C.J., and PRITCHARD and SOMERVILLE, JJ.

PRITCHARD, Judge.

In a tragic collision of a Mustang car with a utility pole on the Belt Highway in St. Joseph, Missouri, appellant's bride of three hours was killed. Her death resulted in a charge of manslaughter against appellant, and a trial to a jury which found his guilt, but which was unable to agree upon punishment. The trial court, after noting appellant's youth (age 17) and the fact that no intoxication was involved, sentenced him to 9 months imprisonment in the county jail.

By Point II, which will be first considered, appellant claims that the trial court erred in not directing a verdict at the close of the state's opening statement, and in not sustaining his motion for judgment of acquittal at the close of all the evidence. The essence of the argument is that 'speed and speed alone' is not in itself sufficient to support a conviction of manslaughter in the operation of a motor vehicle.

The facts, considered in the light most favorable to the state, are these: At the scene of the collision, the Belt Highway was four lanes, each 10 feet wide, with two for northbound and two for southbound traffic. There was a curb on the west side of the highway which was about two inches higher than the surface of the road. The shoulder of the road was covered with frozen dampness. The area to its east and west is occupied by businesses, a shopping center, with a McDonald Hamburger business, a bank, a theater, and other establishments. The occurrence was on a New Year's day, 1972, and the time was about 7:15 p.m. when it was dark.

Officer John Riddle was called to the scene at 7:22 p.m. The weather was then clear, and the cement road surface was wet, but where the traffic had been travelling, it had started to dry off a little bit. The only light was that given by street lights. He testified that he found a 1971 Ford hardtop resting against a utility pole and a gas meter vent. The pole was almost sheered in half, but the wires were intact. The area between Frederick Avenue, from which the roadway sloped to the south, and McDonald's hamburger place is a business area. When he arrived at 7:30 p.m., the traffic was heavy. The speed limit at this point on the Belt Highway was 40 miles per hour.

Skid marks on the roadway were measured by Donald Harris to be 270 feet in length leading from the inner southbound lane of the Belt Highway to the vehicle, which was situated in the northwest corner of McDonald's hamburger place.

George E. Fisher witnessed the collision. He came up to the intersection of Belt and Frederick, and the traffic light turned red. He noticed a Ford Mustang headed south in front of him, 'and it was making quite a bit of racket.' There was a Ford Torino in the east lane by the side of the Mustang, and there was not any traffic in front of either car, nor behind Fisher or the Torino. The Mustang's driver was sitting there racing his motor which had 'glass packs' or cutouts on it to bypass the muffler. There were four people in the Mustang, a male driver (appellant), a female to his opposite, and a male behind the driver and a female on the opposite side. The light changed to green and the Ford Torino pulled away fairly fast, at a high rate of speed, 'and the Mustang revved up its motor and went, proceeded to take off, and it kind of killed it.' The motor did not completely die. 'He kind of pushed the clutch in, what they call double clutching, and caught it and when he let the clutch out it had a tendency to fishtail, go sideways.' Fishtail is just a term used for the rear section of a car going from side to side. The tires spun and the car fishtailed just momentarily, then it seemed to get traction and proceeded down the highway. 'Well, as I observed it, the Fairlane was still in the center lane. * * * I saw the Mustang proceed away at a fairly high rate of acceleration down the highway. And I happened to notice the car in the center lane. It started putting on its brakes and turned its turn signal on to the left.' The car in the center, inward lane, was right about the animal clinic and was getting ready to turn into one of the exits or entrances to the Community World.

The Mustang proceeded on at a fairly faster rate of speed and passed the Torino, which was at a dead stop, and at a speed which Fisher estimated to have been 60 miles per hour. There was no traffic between Fisher, the Torino and the Mustang. Then, after the Mustang passed the Torino, another car started to pull out of either East Hills or Community on the east side of the highway, turning out to go south. It came across three lanes of traffic and went into the southbound fourth lane about a foot (it could have been 2 1/2 feet) with its front fender section. 'When it came out it went there across like it was going to go into the fartherest lane over and then swerved back into the center lane.' Fisher did not see any brake lights or anything in the way of deceleration on the Mustang until the crossing car was well into his lane. The Mustang then swerved to the right up on the shoulder, 'I would say about two-thirds of it', with the two right wheels and the left back wheel on the shoulder just momentarily. The Mustang was still travelling about 60 miles per hour. Immediately it seemed to be into a broad slide across the intersection and road, went by the car which had pulled out about 5 feet from it, at which time Fisher caught a glimpse of the brake lights going on. It then hit the curb riser on the other side of the road which threw it into the air. It then went on southeasterly and hit a utility pole after sliding better than 200 feet.

Fisher testified that there was no other southbound traffic at the time, and two northbound cars had passed and were about 5 car lengths up to the north when the collision happened. There were also two other northbound cars right about McDonald's at that time. At the time of the collision it was dark, it had been misting, and it was still a little moist on the highway in spots.

Ricky Mulvaney was with appellant, who was driving Ricky's father's car, which had a 428 cubic inch engine and a 4 speed transmission. During the time he was present with appellant, Ricky told him 'more than once' to slow down. He did not know how many times he told him. Appellant drove the car well, normal, and Ricky did not ask him to let him drive.

Larry Donald Hall was in the Ford Torino with his girlfriend going south on the Belt Highway at Frederick Avenue. He was in the center lane as he approached the intersection, the traffic light for which was red. As he was waiting for the light to change there were several vehicles behind him, and the 'Mustang came the light to change there were several vehicles behind him, and the 'Mustang came on my right.' The driver of the Mustang 'revved his engine a couple of times.' When the light changed, they both took off, and the Mustang seemed to bog down and stop after about four feet. Hall went ahead to the speed limit quickly, but did not spin his tires. The road surface was damp. Thereafter, Hall saw the Mustang in the mirror and heard it coming. 'It sounded like it was under acceleration,' and it passed him on the right about the first entrance to East Hills, which is the first entrance south of the Howard Johnson restaurant. Hall estimated the speed of the Mustang at between 60 and 75 miles per hour, and as Hall let off the accelerator he saw it go down the highway just a little way and go off the right side of the road with two wheels. This was about the Belt National Bank location on the west side of the road. Hall was then 4 or 5 cars behind the Mustang, and quite a little way ahead of him, 15 or 20 car lengths, was a car that pulled out into Hall's lane. That car came from the Interstate Gas Station on the east side of the Belt, and it pulled out normally and its driver seemed to be careful. The front bumper of that car may have crossed into the westernmost southbound lane (appellant's lane) for just a split second. Hall thought that the pulling out of that car may have shocked the driver of the Mustang a little bit. At the time the car pulled out, the Mustang was about beside Hall, that being 15 or 20 car lengths from the crossing car, and the Mustang then swerved to the shoulder, where it travelled quite a few feet at a speed of about 70 miles per hour. Thereafter, its driver tried to pull back onto the highway and hit his brakes. 'That was the first time I saw lights.' The Mustang then went by the car that had pulled out from the east, about 15 feet from it, then spun halfway around, slid better than 100 feet at about 60 miles per hour, and collided with the pole.

The opening statement of state's counsel has been reviewed. It sets forth the essence of what the evidence would be in accordance with what was actually developed by the above facts. In such case the trial court did not err in overruling the motion for directed verdict made by appellant at the close of the opening statement. State v. Gray, 423 S.W.2d 776, 785(17) (Mo.1968) and authority and cases cited.

It is undoubtedly true, as appellant contends, that ordinarily speed, or excessive speed, is an insufficient basis to sustain a charge of manslaugher by culpable negligence. 61A C.J.S. Motor Vehicles § 657(6)b., p. 463; People v. Clark, 130 Ill.App.2d 558, 265 N.E.2d 191, 194(4, 5). The Clark case states that rule but...