State v. Hinojosa

• Decision Date: 10 September 1951
• Docket Number: No. 2,No. 42151,42151,2
• Citation: 242 S.W.2d 1
• Parties: STATE v. HINOJOSA
• Court: Missouri Supreme Court

Page 1

242 S.W.2d 1

STATE v. HINOJOSA.

No. 42151.

Supreme Court of Missouri, Division No. 2.

Sept. 10, 1951.

Jack G. Beamer, Robert A. Sniezek, William Icenogle and Stubbs, McKenzie & Williams, Kansas City, for appellant.

J. E. Taylor, Atty. Gen., John S. Phillips, Asst. Atty. Gen., for respondent.

LEEDY, Presiding Judge.

Victor M. Hinojosa (hereinafter called defendant) appeals from a judgment of the Circuit Court of Jackson County, convicting him of manslaughter by culpable negligence and sentencing him to imprisonment in the state penitentiary for a term of 10 years.

Among defendant's twenty-one separate assignments of error is one based on the refusal of the court to direct a verdict of not guilty. In determining the submissibility of a criminal case the state's evidence, with such inferences favorable to the state as may legitimately be drawn from the facts proved, is to be taken as true, and the evidence of defendant contradictory thereof is to be disregarded. State v. Moore, 339 Mo. 52, 60, 95 S.W.2d 1167, 1171. In the light of that rule, the facts may be thus stated:

Shirley Allen, a pedestrian, was struck by an automobile driven by defendant while she was on or near a safety island in a pedestrian lane at 39th and Broadway, in Kansas City, on the evening of December 3, 1948, at about 6 p. m. She died instantly as the result of a crushed skull, multiple contusions, abrasions and fractures. Broadway runs north and south, is 71 feet 4 inches in width from curb to curb, and has six marked lanes, three for northbound and three for southbound traffic. 39th Street runs east and west, is 46 feet 4 inches wide, and has a double set of streetcar tracks down the approximate middle. There are two pedestrian lanes across Broadway located, respectively, at the north and south lines of 39th. They are 12 feet wide and in each of them (at the center of Broadway) there is an elevated concrete safety island extending north and south. Traffic is controlled by automatic stop lights at each of the four corners of the intersection. The weather was fair and clear; the streets dry; street lights on; intersection well lighted. Miss Allen, with a companion, was walking across Broadway in the pedestrian lane on the south side of 39th when defendant, approaching from the north, and in violation of the red traffic signal light, drove his 1947 Oldsmobile coach into the intersection, in a southeasterly course, at a very high rate of speed, and collided with a car driven by Marion Stackhouse which had entered to intersection from the east (with the green light), and was making a left turn south onto Broadway. The collision occurred north of the center line of 39th. Defendant's car continued on its way approximately 28 feet until it ran over the safety island, struck Miss Allen, and dragged her, underneath the car, 40 or 50 feet to the southeast corner of the intersection where it ran into and through a large outdoor advertising signboard, and struck a brick building on the other side, and there came to rest. There were heavy and continuous skid marks extending from a point 4 or 5 feet southeast of the safety island back northwest for a distance of 87 feet along the course defendant's car had traveled. That defendant was at the time in an intoxicated and drunken condition was abundantly established by the testimony of a dozen on more witnesses, as will appear from these expressions which have been taken at random from the testimony: He could not walk without stumbling, and was obviously drunk; He got out of the car 'very much glassy eyed,' he was 'out' or practically so; His face was flushed, clothing disorderly, eyes bloodshot and bleary, strong odor of liquor, gait unsteady, definitely under the influence of liquor; He talked incoherently, face flushed, eyes bloodshot, odor of alcohol on him, and he could not answer questions; Said it was 3 o'clock when in fact it was near 7, face flushed, walked unsteady; Swayed and staggered when he walked; He was under the influence of alcohol and didn't know where he was, face very flushed, speech confused; He talked thick-tongued, as though his tongue was swollen; He was a little arrogant, very much intoxicated, noticed him weaving on the street; Defendant was drunk.

There was also evidence of defendant's erratic behavior just prior to the collision as he drove south in the heavy, home-going traffic along Broadway between Linwood Boulevard (32nd Street) and 39th. Miss Boutross testified that as she stopped for the red light at Linwood, a car which proved to be defendant's (and driven by him) bumped her slightly and in a few seconds later she 'got hit very hard again,' pushing her car across the pedestrian lane and out into the intersection. It was necessary for her to give a hard application of the brakes to keep from going into the cross traffic. She looked in the rear vision mirror and observed the man waving his hands; for what purpose she did not know. She testified that for the next three blocks (to Armour Boulevard) they 'were more or less bumper-to-bumper at all times,' defendant's car striking hers constantly, twice with such severity as to cause injuries to herself and to the other occupants of her car. Near 36th Street she 'pulled over in the wrong (northbound traffic) lane to get away from him hitting me.' After he had passed, she cut back into the inside lane again.

Richard J. Walters, a carpenter, was driving south on Broadway and at Armour he saw defendant's car bump and push a Pontiac which was directly ahead. In the vicinity of 36th Street the Pontiac pulled out of the way, but witness continued to watch defendant's car and thereafter saw it bump into a '38 Chevy, which likewise pulled out of the way. At the time witness started to stop at 38th Street, defendant was 'running better than 60 miles an hour.' He saw the accident from near 38th and Broadway.

James Harris, manager of the Brookside Garage, was proceeding south on Broadway (in the inside lane) and at the intersection of Valentine Road (between 36th and 37th Streets), defendant's car came up on his right side in such close proximity as to cause him to divert his car into the wrong or northbound lane to avert being sideswiped. He followed defendant's car to Broadway, and it was traveling at an estimated speed of 50 miles an hour, and 'zigzagging in and out of traffic.'

Arthur B. O'Keefe, a jewelry repairman, was driving a '38 Chevy south on Broadway between 36th and 37th when defendant pulled in behind and gave him a couple of bumps, then started pushing. Witness applied his brakes, turned off the ignition, and tried to turn out of that traffic lane, but defendant gave him another push, and he had to straighten up, and that put him back in the same lane as before. The car finally passed him 'about 37th Street,' at which time witness was traveling in the inside southbound lane, and defendant went around him by going out in the wrong or northbound lane. After pulling aside to 'find out whether I had any brakes left,' witness continued on to the 39th Street intersection, where he found defendant's car 'in the billboard' at the southeast corner. Witness went over and said, 'I believe you are the man that was pushing me, or had pushed me,' and defendant's only reply was 'My brakes; my brakes.'

The driver of a taxicab which was proceeding west on 39th, testified that as he started across Broadway with the green light, he saw defendant's car approaching the intersection at high speed. Witness diverted his course, and turned north on Broadway to avoid being struck. Defendant's car was going 60 m. p. h., against the red light; defendant swerved to the southeast and hit the Stackhouse car--the back fender or somewhere in the back end--went over the abutment (safety island), and hit the girl and proceeded over and hit the signboard. Witness then went to defendant's car. When defendant started the motor, witness said, 'You better not do that.' At that time others took defendant out of the car. Cars were waiting for the green light on Broadway when the collision occurred. The Stackhouse car was directly in front of the witness. When the light turned green, it proceeded west.

Wilbur Hurst was driving east on the north or inside lane on 39th and stopped at the Broadway intersection for the red light. When it turned green, he started up, but stopped for the Stackhouse car as the latter was making a left turn onto Broadway, and at that time he heard the sound of a racing automobile from the north. He immediately looked up, 'spotted the headlights coming down,' and 'then backed up there slightly to give the road to him.' Defendant's car came on, ran the red light and struck the Stackhouse car. Witness saw the young woman's body 'slightly back of the front wheel' of defendant's automobile. Defendant was sitting in the car which was jammed into the billboard.

Howard Hughes, also traveling east on 39th, had stopped at the Broadway intersection and he was in the outside (or south) traffic lane, adjacent to the Hurst car. He heard brakes screech on defendant's car. This and the stopping of Hurst's car first attracted his attention. He further testified that defendant's car ran the red light, struck the Stackhouse car and kept going to his left until it ran over the curbing, and against the signboard. He saw two women at or near the safety island. They were 'pretty near in the path of the car.' The collision made quite a little dust. After defendant's car went by, there was only one woman left standing there. He went over to the car immediately, and saw deceased lying underneath the left front wheel.

Witness Dye, walking with the green light, had started east across Broadway in the pedestrian lane on the north side of 39th. He was accompanied by two companions, Dave Nicola and Harry Guthrie. He testified that when they had gotten out about 5 or 6 feet from the curb, they heard a car roaring, looked up and 'saw a car [half...