State v. Hughey, 51712
| Decision Date | 11 July 1966 |
| Docket Number | No. 51712,No. 2,51712,2 |
| Citation | 404 S.W.2d 725 |
| Parties | STATE of Missouri, Respondent, v. Kenneth Eugene HUGHEY, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Frank P. Motherway, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Frieze & Crandall, Carthage, for appellant.
Defendant was convicted of manslaughter by culpable negligence under § 559.070 () and sentenced to imprisonment for five years. His motion for new trial was overruled and he appealed.
The evidence on behalf of the State (the only evidence offered) will support the following recital of facts: The body of John Benjamin Carl, a 15-year-old boy, was found at approximately 6:15 p.m., on November 18, 1964, near the middle of the 600 block of South Hall Street in Webb City, Missouri. The body was found near a telephone pole on the west side of the street, lying at the west edge of the pavement, principally on the shoulder. This was just south of the house of the Packer family at 612 South Hall.
The body was discovered by Pearl Williams, who lived at 626 South Hall. Prior to finding the body, Mrs. Williams had been walking from her house to her car when she heard a thud. At the time she thought it was the sound of a fast-moving automobile hitting a dip in Hall Street where it intersects with Garrison Street at the next intersection to the north. Two or three seconds later a car going south on Hall Street passed Mrs. Williams' home going very fast. Mrs. Williams estimated its speed at 75 miles per hour. She said, 'It was just a flash in front of me and then it was gone.' She did not observe any details about the car or its color or the number of its occupants. The night was dark, misty and rainy and visibility was not very good. She then got in her car and started north and discovered the body of the Carl boy. Mrs. Williams called Mr. Packer, and the police were then notified.
Other neighbors also heard a loud noise at this same time. Mr. Packer described it as like two cars running together and different from the sound of a car hitting the dip at Garrison Street. Mr. Packer was looking after the children and did not go outside until Mrs. Williams came to the door. Pete Cummings, residing at 610 South Hall, heard a loud boom. Mrs. Cummings thought someone might have hit their parked car and went out and checked it. Gary Compton, 617 South Hall, was watching television and heard a loud noise which sounded like a car hitting the dip but was louder than cars usually made when they did so. Compton went to the window and he saw the taillights of a car going south on South Hall. He also had heard the acceleration of a car after the loud sound and it sounded as though the car had no muffler. He judged the speed of the car at 50 to 60 miles per hour. Burton Clark, 620 South Hall, was watching a newscast and heard what he described as a hollow sound which he estimated as being within 100 feet of his house. He stepped to his front door and when he looked south he saw the taillights of a car going over a rise about a block to the south. The car which Clark had heard sounded like a car without a muffler. Based on the sound, Clark estimated the speed of the car at 55 to 60 miles per hour when it passed his house. C. V. Carl, father of the deceased boy, was at his mother's home at 627 South Hall. His son Benny came from their home at 606 South Hall to tell his father that supper was ready and then started back to their own home. Mr. Carl shortly heard a noise which sounded like a truck had backfired. He then heard a car go by which had excessive muffler noise or a broken pipe. He learned of his boy's death when he started back home shortly thereafter.
All of the witnesses fixed the time of the noise by newscasts which they had heard or were watching and fixed the time as being 6:15 p.m., or thereabouts.
The cause of death was established by testimony as being a severe blow to the neck, fracture of the vertebrae in the neck, a crushing of the cord, and hemorrhage of the brain.
That evening the officers searched the area with a flashlight. They found a pool of blood where the body was lying and the boy's broken glasses were located nearby. Approximately 90 feet north of that point, the officers found a pile of debris on the street consisting largely of dirt which accumulates under car fenders and is knocked off by a sudden blow. There also was some broken glass. One shoe of the Carl boy was found near this debris. The chief of police could not positively identify the source of this debris, but he testified that this was the place where he judged the boy to have been hit.
The following morning, four chrome block letters were found on the west shoulder of South Hall. These were a 'C', an 'N' and two 'L's.' Three of the letters were located near where the body was found. The other one was up the street to the north in front of the Cummings house, which was at 610 South Hall. In addition, slivers of paint, some an inch or more in length, were found all of the way from the assumed point of impact to the point where the body was found. These had been washed by the rain off onto the shoulder on the west side.
Defendant and one Ronald Hudnall had met at the Owl Bar in Webb City at about 11:00 a.m., on November 18, 1964. They were there for a time playing shuffleboard and the pinball machine and having a few beers. They next went in Hudnall's car to Watson's place at Oronogo, where they stayed an hour or two, again playing shuffleboard and the pinball machine and drinking several beers. Next, they drove in Hudnall's car to Pete's Bar in Webb City, where they stayed until after 6:00 p.m. Here they played dominoes and drank more beer. The proprietor and his wife, Mr. and Mrs. Eden, came in between 6:05 and 6:10, and defendant and Hudnall left shortly thereafter. Both Edens fixed the time of departure as being between 6:15 and 6:30. Defendant and Hudnall appeared to be hurrying when they left. Hudnall then drove defendant back to the Owl Bar, about three blocks away, where he had left his car that morning. Defendant told Hudnall that he was going to pick up his girl Mary at the Star Motel in Duquesne, where she worked. He got in his 1956 Lincoln sedan, which Hudnall described as being pink or lavender in color, and drove off. With respect to the condition of defendant when he left Pete's Bar, the proprietor of the bar testified he could tell from the defendant's eyes and looks that he had been drinking and was not sober. Speaking of defendant and Hudnall, he said, 'I didn't say they were drunk; I said they were drinking.' The proprietor's wife said, 'They weren't drunk, but they weren't sober.' Hudnall testified, 'We both were having a pretty good time and we was, I'd say, feeling pretty good.' Hudnall testified that he noticed nothing particularly out of the ordinary in defendant's driving as he drove away from the Owl Bar.
The owner of the Star Motel testified that promptly at 6:30 p.m., on that same evening the defendant arrived to pick up his girl friend, Mary Kettner, who was an employee of the motel. She noticed nothing unusual about defendant during the five minutes he was there.
At about 11:30 p.m., on that same night the defendant reported to the police department of Webb City that his automobile had been stolen from outside the Owl Bar sometime during the evening, where he and his girl friend had been since about 7:00 p.m. The car was described to the police as a white over pink 1956 Lincoln four-door sedan with 1964 Oklahoma License OW1426 Motor No. 56WA24383. On March 30, 1965, a Lincoln four-door sedan, located under water in the old Daylight mine shaft just north of Webb City, was brought to the surface. It bore Oklahoma 1964 License OW1426 and the Motor number was 56WA34383. The front of the hood of the Lincoln was caved in and five of the seven chrome block letters normally spelling 'LINCOLN' across the front of the hood were missing. Only the 'I' and 'O' still remained. These block letters were similar to the letters 'L', 'L', 'C' and 'N' found on the west shoulder of the 600 block of South Hall Street on the morning of November 19, 1964. Paint scrapings were taken from the hood of the Lincoln when it was removed from the mine shaft. These, with the paint slivers found on November 19, 1964, on the west shoulder of South Hall Street between where the body was found and the apparent point of impact, were sent to the State Highway Patrol Laboratory at Jefferson City. In addition, the clothes of the deceased Carl boy were sent to the laboratory and paint slivers were found on these clothes. The laboratory technician also discovered some paint on the chrome letter 'N' which was found at the scene where young Carl was killed. The technician testified that from a microscopic examination, the use of the spectrograph and some chemical analyses by use of solvents he determined that there were three distinct layers of finish. First, there was a beige undercoat, then a layer of light blue enamel, and finally a layer of pale lavender lacquer. This was true of the samples found at the scene, the samples taken from the hood of the car, the particles found in the victim's clothes, and the paint on the letter 'N'. The technician determined and testified that all of each type came from the same batch of paint. He further testified that the lavender lacquer was not put on the car at the Ford factory because this was a 1956 automobile and the use of lacquer as a finish on cars did not commence until subsequent to 1957.
There was testimony that the most direct route from the Owl Bar to the Star Motel, located at 7th and Duquesne, was to go east from the Owl Bar to Hall Street and then south on Hall, which eventually becomes Duquesne Street. It was 4.6 miles by that route from the Owl Bar to the Star Motel. Of this distance it was four miles from...
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