State v. Miller

• Decision Date: 19 November 1921
• Docket Number: No. 22638.,22638.
• Parties: STATE v. MILLER.
• Court: Missouri Supreme Court

234 S.W. 813

STATE v. MILLER.

No. 22638.

Supreme Court of Missouri, Division No. 2.

November 19, 1921.

Appeal from St. Louis Circuit Court; Vital W. Garesche, Judge.

Ernest C. Miller was convicted of reckless and culpable negligence, etc., and he appeals. Affirmed.

Claude O. Pearcy, of St. Louis, for appellant.

Jesse W. Barrett, Atty. Gen., and Albert Miller, Asst. Atty. Gen., for the State.

WHITE, C.

The defendant was charged, by information filed in the circuit court of the city of Saint Louis, with reckless and culpable negligence in feloniously wounding one Florence Able by propelling an automobile against her. The offense was alleged to have been committed August 14, 1918. Upon a trial the defendant was found guilty, and his punishment assessed at imprisonment for one year in the city jail, and a fine of $100.

The evidence for the state showed that on the date mentioned the defendant was operating a large Hudson Super-Six automobile, driving north on Kingshighway, which ran north and south containing two parallel street railway tracks. As he approached Chippewa street, a car coming from the north on Kingshighway stopped to discharge passengers at the usual stopping place at Chippewa. street. Florence Able, her sister Christine Able, and a Mrs. Shannon alighted from the front end of the car, on the west side of Kingshighway, and waited there until the car passed on south. They then started across the tracks toward the east side of Kingshighway, when the defendant's automobile, going north, collided with them. Florence Able was severely injured; both legs were broken above the knee, the collar bone was broken, her right ear was torn off, and her left eye (Tossed.

The women testified that after the street car passed on they started to cross the street and the automobile was upon them before they had time to step back. Christine Able said that she saw the automobile a half a block away; that they stood on the southbound track, and the automobile, instead of passing on the east side of the street, struck them where they stood. Mrs. Shannon testified that they saw the automobile zigzagging toward them; that they got between the street car tracks and then stepped back, and were struck by the automobile. Other witnesses testified that the automobile swerved to the west and struck the women when they were between the tracks.

Other testimony for plaintiffs tended to show that the automobile was going at the rate of about 40 miles an hour.

The defendant offered evidence to show that as he approached where the women were standing in the street they dodged first one way then the other; when he would swerve to avoid them, they would run in his way; that they dodged in his way and he ran against them. He did not slow up. He said he was traveling at the rate of about 20 miles an hour; that he could not stop his car under 70 feet; that the street was covered with oil.

The state offered evidence in rebuttal to show that the street had not been oiled for a week or two, and was dry and dusty. On this evidence the jury, as stated, returned a verdict of guilty, and the defendant appealed.

I. It is claimed by the appellant that the evidence is insufficient to support a verdict of guilty. This court has affirmed verdicts of guilty in cases of this character where the evidence was not as strong nor as convincing as it appears in this case. State v. Horner, 266 Mo. 109, 180 S. W. 873; State v. Watson, 216 Mo. 420, 115 S. W. 1011.

II. Appellant complains of certain instructions, and the failure of the court to instruct on all the law of the case. The state's counsel assert that the point is not saved for review. It is unnecessary to consider that question of procedure for the appellant has not pointed out where the court failed in any particular fully to instruct, nor did the appellant offer any instruction of its own. On a careful examination of the instructions, we find that the court very fully and completely instructed on all features of the case, giving the defendant the benefit of every theory on which he might be acquitted.

III. It is complained by appellants that the court erroneously defined "culpable negligence." The defendant was convicted of maiming and wounding as defined in the statute, section 3264, R. S. 1919. The first instruction requires the jury to find the defendant guilty of "culpable negligence" as mentioned in that section, section 4483, R. S. 1909, and limited the punishment as provided therein. It requires a finding of all the facts necessary to constitute the offense of maiming or wounding another by "culpable negligence."

The definition of "culpable negligence" is as follows:

"`Culpable negligence,' within the meaning of the law, is the omission on the part of one person to do some act, under given circumstances, which a reasonably careful and prudent man would do under like circumstances; or the doing of some act, under given circumstances, which a reasonably and ordinarily careful and prudent man, under like circumstances, would not do, by reason of which omission or act another person is directly injured in life or bodily safety."

This is in the exact language, almost word for word, of an instruction approved by this court in State v. Coulter, 204 S. W. 5.

IV. The court gave the usual cautionary instruction on the credibilty of witnesses, containing this sentence:

"You are further instructed that, if you believe that any witness has...