State v. Medlin

• Decision Date: 14 October 1946
• Docket Number: 39893
• Parties: State v. Connie Medlin, Appellant
• Court: Missouri Supreme Court

197 S.W.2d 626

355 Mo. 564

State v. Connie Medlin, Appellant

No. 39893

Supreme Court of Missouri

October 14, 1946

Rehearing Denied November 11, 1946.

Appeal from Pemiscot Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

Sam J. Corbett for appellant.

(1) The defendant should not have been tried in Pemiscot County Missouri, on an information charging him with manslaughter in Mississippi County, Arkansas: State v. Pemberton, 30 Mo. 376. (2) The State failed to make a case against the defendant for manslaughter by culpable negligence and the court should have sustained the defendant's demurrers to the evidence offered at the close of the State's evidence and also at the close of all the evidence in the case: State v. Daubert, 42 Mo. 242; State v. Brosius, 39 Mo. 534; State v. Young, 237 Mo. 170. (3) The trial court erred in refusing defendant's requested Instruction C. The rule is settled that negligence, to be culpable within the meaning of the manslaughter statute, Sec. 4382, R.S. 1939, must be more than ordinary common law negligence. It must be so great as to indicate a reckless or utter disregard of human life: State v. Simler, 167 S.W.2d 376. (4) The trial court erred in refusing defendant's requested instructions D and E which were to the effect that if the jury believed from the evidence that the deceased, Gladys Mae Hollomon, directly caused the injuries from which she died by stepping out of an automobile stalled in the middle of a public street in the path of and immediately in front of the automobile being driven at the time on said street by the defendant, Connie Medlin, then the jury would find the defendant not guilty. (5) The trial court erred in giving Instruction 5, of its own motion, upon the question of the cause of death of deceased, there being no evidence upon which to predicate said instruction and all the proof showing, in the case, that the deceased came to her death by having her leg amputated, which was not done by the defendant. (6) There was no evidence that the amputation of the limb was advised by physicians and prescribed as the proper and necessary treatment. (7) And the instruction does not require that Gladys Mae Hollomon should have been struck and injured by the automobile driven by the defendant, but merely says an automobile, and being one of the indefinite articles refers to any automobile that may have struck her: State v. Daubert, 42 Mo. 242; State v. Brosius, 39 Mo. 534; State v. Young, 237 Mo. 170. (8) A conviction of manslaughter by culpable negligence in driving an automobile which collided with the deceased is unauthorized, in the absence of any direct proof of the cause of the death of deceased, or that the injuries she received were fatal: State v. Simler, 167 S.W.2d 376; State v. Joy, 315 Mo. 7. (9) Misconduct on the part of Hon. Everett Reeves, counsel employed to assist the State in prosecuting the cause, in making the closing argument in the case. A person cannot be convicted of manslaughter by culpable negligence in driving an automobile merely because he had been drinking nor because he was driving faster than prescribed by city ordinance, even if the evidence showed that to be true, but the negligence, to be culpable within the meaning of the manslaughter statute, must be more than ordinary common law negligence. State v. Simler, 167 S.W.2d 376. (10) And the counsel assisting the State could not supply the lack of the evidence and of law in the case by his argument to the jury and it was prejudicial to the defendant for him to insist on doing so even though the court rebuked him, but when the court reprimanded Mr. Reeves he did not instruct the jury to disregard his remarks: State v. Wright, 141 Mo. 333; State v. Olds, 217 Mo. 305; State v. Taylor, 293 Mo. 210; State v. Adams, 269 S.W. 401. (11) The trial court erred in excluding that part of the testimony of Dr. Aquino, in which he stated that on reaching the scene of the accident Mrs. Hollomon was in the ambulance and Rookie Downing was in there with her and that he, Dr. A'Quino, asked Mrs. Downing "what on earth was the matter," and she, Mrs. Downing, said, "Doc, we have been drinking all the evening."

J. E. Taylor, Attorney General, and Will F. Berry, Jr., Assistant Attorney General, for respondent.

(1) The information in this case is sufficient in form and properly charges the offense of manslaughter resulting from culpable negligence. State v. Millin, 318 Mo. 553, 300 S.W. 694; Secs. 3771, 4382, R.S. 1939; State v. Majors, 329 Mo. 148, 44 S.W.2d 163. (2) The court did not err in overruling appellant's demurrers "A" and "B" offered at the close of the State's case and at the close of the entire case, respectively. State v. Wilhite, 159 S.W.2d 768; State v. Peters, 123 S.W.2d 34. (3) The court did not err in refusing to give Instruction C offered by the appellant. State v. Murrell, 169 S.W.2d 409. (4) The court did not err in refusing to give appellant's offered Instructions D and E. State v. Murrell, 169 S.W.2d 409. (5) The court did not err in giving Instruction 5. 2 Wharton's Criminal Evidence, sec. 872, p. 1508, sec. 1002, p. 1764; State v. Reinke, 147 S.W.2d 464; State v. Talbert, 189 S.W.2d 555. (6) The court did not err in refusing to grant appellant a new trial for the alleged misconduct of private counsel employed to assist the State. State v. Dodson, 29 S.W.2d 60; State v. Varnon, 174 S.W.2d 146. (7) The court did not err in striking certain testimony of the witness A'Quino.

Hyde, P.J. All concur except Clark, J., absent.

OPINION

HYDE

Defendant was convicted of manslaughter by culpable negligence and sentenced to two years in the penitentiary.

While driving a Plymouth Coupe north on Ward Avenue in Caruthersville, about 11:30 p.m. on May 4, 1945, defendant struck and seriously injured Mrs. Gadys Hollomon. She was taken to a hospital in Blytheville, Arkansas, where she died about 2:00 a.m. Mrs. Hollomon had been riding in the left rear seat of a Dodge car driven by Mrs. Anita Essary, but had stepped out of the car shortly before being struck. They left Mrs. Hollomon's apartment with Carl Baskin and Carl Taylor, who were also in the car at the time, and drove west on 6th Street to Ward Avenue. They intended to go south on Ward Avenue but the car stalled in the intersection. It stopped near the center of Ward Avenue, a 40 foot street, headed southwest, somewhat closer to the east line of the street than to the west side. However, there was room for cars to pass on either side of the stalled car and one car did pass on each side prior to the casualty. Ward Avenue was the main street leading into the business district, running in front of the Court House which was just south of this intersection, and carried considerable traffic.

Mrs. Essary was unable to start the car and Mrs. Hollomon suggested that she try to start it. She opened the left rear door and stepped out on the east side of the car. According to the state's evidence, defendant's automobile was about a block away when she got out of the car. It was going from 45 to 50 miles per hour and did not slow down before it struck her. Before being struck by defendant's car, "she put one hand on the glass and one foot on the running board and waved to the other car to stop." The lights of both cars were on and there were street lights on both sides of the street. The Dodge car was thrown back against a brick building, at the northeast corner of the intersection with sufficient force to break some of the bricks in the wall. The Plymouth car traveled about 60 feet beyond the point of the impact with one fender bent down on the wheel. A state highway patrolman testified that the brake pedal on defendant's car "would go to the floor boards before taking hold at all"; and that "the brakes wouldn't stop it." Defendant had evidence that the brakes had been put in good condition about five days before the casualty. A police officer, who arrested defendant, said that he was under the influence of liquor at the time, and that he said he didn't see them. Defendant testified that he drank three bottles of beer between 6:00 p.m. and 9:30 p.m. He had evidence that his car was going between 35 and 40 miles per hour, "not over 40."

Defendant's version was that he did not see Mrs. Hollomon until he was about ten feet from her; that she was about eight feet outside of the Dodge car, and not by the door of the car; that he swerved into the other car in attempting to keep from striking her; and that if she had not been in the street he could have passed to the east of the other car without striking it. He said he did not see her get out of the car and did not see the Dodge car until after he had passed another car about 60 feet south of it and that the lights on the cars blinded him. The speed limit in Caruthersville was 25 miles per hour.

Defendant contends that the information is fatally defective on the ground that it charges the defendant with manslaughter in the State of Arkansas. There is no merit in this contention. The information states that Mrs. Hollomon died in Blytheville, Mississippi County, Arkansas, but it very definitely alleges that mortal wounds were inflicted in Pemiscot County, Missouri, and that the acts which caused them were done there. Sec. 3771, R.S. 1939, Mo. Stat. Ann. authorizes indictment, trial and conviction in the county in which the mortal injury was inflicted when death occurs in another state. [See State v. Majors, 329 Mo. 148, 44 S.W.2d 163.] This contention is overruled.

Defendant further contends that a verdict should have been directed in his favor. Defendant claims that the state failed to make a case of culpable negligence and that it was not shown whether the death of Mrs. Hollomon was caused by the injuries sh...