State v. Kelsay

• Citation: 228 S.W. 754
• Decision Date: 07 March 1921
• Docket Number: No. 22206.,22206.
• Parties: STATE v. KELSAY.
• Court: United States State Supreme Court of Missouri

228 S.W. 754

STATE v. KELSAY.

No. 22206.

Supreme Court of Missouri, Division No. 2.

March 7, 1921.

Appeal from Circuit Court, Miller County; J. G. Slate, Judge.

Ward Kelsey was convicted of man-1 slaughter, and he appeals. Judgment reversed, and defendant discharged from custody.

On November 12, 1919, the prosecuting attorney of Miller county, Mo., filed, in the circuit court of said county, a verified information, charging defendant with manslaughter, based upon the alleged negligence of defendant in operating a Ford truck, over one of the street crossings in the town of Eldon, in Miller county aforesaid, in such manner as to run over and kill one Ruth Bullard, a minor, six or seven years of age.

On December 1, 1919, defendant was formally arraigned and entered his plea of not guilty.

On December 2, 1919, the jury, at the conclusion of a trial, were unable to agree upon a verdict, were discharged by the court, and the cause continued to the March term, 1920, of said court. On March 22, 1920, defendant was again put upon his trial before a jury. The latter returned into court the following verdict:

"We, the jury, find the defendant guilty as charged in the information and assess his punishment at ($100.00) and three months in jail."

Over the objection of defendant, the court amended said verdict, so as to make it read as follows:

"We, the jury, find the defendant guilty of manslaughter as charged in the information and assess his punishment at a fine of ($100.00) and at three months' imprisonment in the county jail."

Both of the above verdicts were signed by the foreman.

In due time, defendant filed his motions for a new trial and in arrest of judgment. Both motions were overruled, and the cause duly appealed by him to this court.

The state's evidence, as to the merits of the controversy, tended to show that on the afternoon of October 22, 1919, Ruth and Irene Bullard, sisters, were walking upon the east side of Maple street in Eldon, Mo. Ruth, the deceased, was 0 years old, and Irene 10. They had been to the grocery store and were walking north. Maple street is the main thoroughfare of said town. They approached a crossing of said street, and a Ford truck, driven by defendant, appeared thereon, traveling north. In Maple street, there was erected a sign or marker, which read, "Keep to the Right." Defendant drove the truck around this sign, turned north and then east to go over the crossing where deceased and her sister were standing. A team of horses with a loaded wagon was approaching this crossing from the east. Upon this crossing, and traveling south, were three other small children, Lucile Laubaugh, her brother, and a boy by the name of Bishop. All of the children stopped to let the truck go over the crossing.

The foregoing statement of facts was taken from the brief of the Attorney General, and is sustained by the record.

Two witnesses for the state, named Johnson and Phillips, undertook to fix the rate of speed of the Ford truck while on Maple street before it reached the crossing where the accident occurred. W. C. Johnson, a soldier, was at work on a cable about 40 feet in the air, and was facing Main street. In regard to defendant's rate of speed, he testified as follows:

"Q. What rate of speed was he driving, if you know, when you first saw him? A. About 15 to 18 miles per hour." (Italics ours.)

This witness said defendant slowed down slightly as he approached the crossing. Phillips said he was on the sidewalk opposite Harvey's Clothing Store on Maple street, and defendant's car, coming from the south, attracted his attention. He said the car was running 15 miles per hour; he could not tell who was driving the car; did not know whether it was a white or black man. In fact, he admits, that he did not pay any attention to the car. Neither Johnson, nor Phillips, undertook to fix the rate of speed defendant was traveling, when he approached the crossing near where Ruth Bullard was struck.

It does not appear from the evidence that any horn was sounded as defendant approached the crossing, but pedestrians were standing on each side of same waiting for him to cross.

The state also introduced in evidence an ordinance of Eldon, making it a misdemeanor to drive an automobile on Maple street at a rate of speed exceeding 10 miles per hour and on any other street at a rate of speed in excess of 12 miles per hour.

The testimony of the state, as to what occurred at time and place of accident, is substantially as follows:

W. C. Johnson, in his direct examination by the state, in describing what occurred at time of accident, said that he noticed some little children on the east side of the street going north towards the barber shop; that defendant's car coming from the south started to turn east towards Pink Berry's barn; that these little children were crossing the street, "and one of them evidently got excited and darted back in front of the car." (Italics ours.) On cross-examination, this witness testified that these girls passed over the crossing when defendant was four or five feet away; they were traveling north, and after they passed over the crossing, defendant attempted to cross; that the little girl that was run over seemed to get excited and darted back in front of the car; that her older sister grabbed at her, but missed her; that defendant was leaving Maple street and turning due east when he was on the crossing, and the little girls were going due north; that after they went over the crossing, defendant drove his car upon it; that after passing over the crossing, all the little girls stopped; that as defendant drove his car onto the crossing. Ruth turned and came back in front of the car; that deceased suddenly placed herself in front of the car; that previous to her jumping in front of the car, she had not indicated that she was going back over the crossing.

Joe Robbins, witness for the state, testified that these girls were going north on the sidewalk toward the barber shop; that defendant was driving north on Maple street; that he turned his car east to go over the crossing; that the girls stopped, and one of the little girls stepped right back in front of the car on the north side.

Irene Bullard, the sister of deceased, and a witness for the state, testified in substance, that she and deceased were going north towards the barber shop, and when they got to the crossing, they stopped to let defendant's car go by; that when they stopped to let the car drive over, deceased stepped in front of the car; that she started to run over on the side next to the barber shop; that before she could get over, the car struck her; that she saw Miss Lucile Laubaugh, who had stopped on the other side of the crossing to let the car go by; that she was on one side and witness on the other side of the crossing; that deceased moved so quickly witness did not have time to grab her.

John Buchanan, witness for the state, said he could not tell how fast the car was going; that it knocked deceased about four feet.

Lewis Laubaugh, witness for defendant, testified that he saw the car strike deceased; that he observed her before the car struck her; that she and the other girls were standing on the south side of crossing, waiting for the car to go by; that as the car started up onto the sidewalk, Ruth started, and about the time she got middleways, she started back; that deceased screamed.

Mrs. F. C. Cullumber, in behalf of defendant, testified, in substance, that she was in the jewelry business, and was looking out of her store window; that she saw defendant driving the car up the street from the south and traveling north; that she saw him turn east at the crossing where deceased was injured ; that she (witness) had operated a car some, during the last two years, and had ridden in a car with other people; that she...