State v. Millin

• Decision Date: 12 December 1927
• Docket Number: 27947
• Citation: 300 S.W. 694,318 Mo. 553
• Parties: The State v. Fred R. Millin, Appellant
• Court: Missouri Supreme Court

300 S.W. 694

318 Mo. 553

The State v. Fred R. Millin, Appellant

No. 27947

Supreme Court of Missouri

December 12, 1927

Appeal from Jackson Circuit Court; Hon. James H. Austin Judge.

Reversed and remanded.

Harry L. Donnelly, W. E. Griffin and Charles A. Orr for appellant.

(1) The trial court should have sustained the demurrer offered by defendant. The evidence in the case did not show the defendant guilty of ordinary negligence, much less criminal negligence as charged in the indictment. State v Henson, 106 Mo. 66; State v. Kelsey, 228 S.W 754; State v. Brown, 234 S.W. 785. (2) In a criminal case every issuable fact to establish the state's case as well as the defendant's defense must be submitted to the jury. State v. Coulter, 204 S.W. 5; State v. Winkler, 273 S.W. 1040; State v. Watson, 216 Mo. 420; State v. Grote, 109 Mo. 345; State v. Glenn, 262 S.W. 1032; State v. Beckham, 267 S.W. 820; State v. Nelson, 231 S.W. 590; State v. McBrom, 141 S.W. 1121; State v. Gore, 237 S.W. 993; State v. Burns, 213 S.W. 115; State v. Weisman, 256 S.W. 740; State v. Clinton, 213 S.W. 841; State v. Ray, 225 S.W. 973; State v. Renfro, 279 S.W. 702.

North T. Gentry, Attorney-General, and A. B. Lovan, Assistant Attorney-General, for respondent.

(1) The indictment is sufficient as to both form and substance. State v. Renfro, 279 S.W. 702; State v. Scheufler, 285 S.W. 419. (2) The instruction defining culpable negligence is correct and has the approval of this court. State v. Horner, 266 Mo. 113.

OPINION

Blair, J.

Appellant was charged with and convicted of the felony of manslaughter. The jury assessed his punishment at imprisonment in the county jail for a term of six months.

The contention that the evidence is not sufficient to support the verdict requires a somewhat detailed statement of the charge and the proof. In substance, the indictment alleged that on September 21, 1925, appellant "feloniously, carelessly and with culpable negligence" drove his automobile with great force and violence against one Josephine McBane, inflicting such injuries that she died as a direct result thereof. The sufficiency of the indictment is well supported by the cases of State v. Renfro, 279 S.W. 702, and State v. Scheufler, 285 S.W. 419, cited by the learned Attorney-General in his brief. See also Section 3236, Revised Statutes 1919.

Mrs. Josephine McBane was struck at about 6:30 to seven o'clock P. M., September 21, 1925, at the corner of 30th and Main Streets in Kansas City, by an automobile driven by the appellant. She was taken to the hospital and shortly thereafter died as the direct result of the injuries she received.

Appellant was a salesman in the employ of an advertising concern. On the morning of the day of the fatal accident, he rented a Chevrolet "Drive-It-Yourself" automobile to use in getting about the city in pursuit of advertising contracts. The day was foggy and misting and continued to be so until the moment of the accident. The witnesses are not in exact accord as to the extent of the fog and mist, or whether it was dark or only dusk, at the moment of the accident.

The proof offered by the State tended to show that three automobiles were proceeding quite closely together southward along Main Street and had been moving in that manner for several blocks before reaching 30th Street. An automobile, driven by one Ethel Harbaugh (Miller at the time of the trial), was in the lead. Right behind the Harbaugh automobile was the automobile driven by appellant. The third automobile was driven by Joe Saunders. According to Miss Harbaugh, her automobile was moving southward well between the street-car tracks and the west curb. She saw a woman standing about at the intersection of 30th Street and Main Street and facing toward the tracks, as if waiting to board a street car. Witness was not required to swerve her automobile in the least in order to pass her.

Just as her automobile passed this woman, Miss Harbaugh heard a crash and the grinding of brakes and the body of deceased came rolling along the pavement diagonally toward her own automobile, requiring a quick swerve to the right by her automobile in order to avoid striking the body. An automobile (admittedly the one driven by appellant) immediately passed the Harbaugh automobile. Miss Harbaugh fixed its speed at thirty to thirty-five miles per hour. The Harbaugh automobile and the one driven by appellant were immediately stopped about the middle of the block between 30th and 31st Streets. The Harbaugh automobile was stopped nearer the scene of the accident than was the one driven by appellant. He immediately came back to the Harbaugh automobile and talked with Miss Harbaugh.

Mrs. Gwinn, who was riding with Miss Harbaugh and who was called as a witness in rebuttal, corroborated Miss Harbaugh. Mrs. Gwinn said something about the deceased being in the safety zone, and appellant claimed there was no safety zone. As a matter of fact the proof disclosed that there was no safety zone marked off or otherwise indicated at the street intersection where the deceased was struck and injured, although she was standing at or near the appropriate place from which to board the street cars. Miss Harbaugh and Mrs. Gwinn, as well as the police officers, testified to the smell of liquor upon appellant's breath and apparent difficulty he had in talking.

Miss Harbaugh noted the license number of the automobile driven by appellant. He got in his machine and drove away and Miss Harbaugh did not see him return. She reported the license number to the police officers, who thus identified the automobile as belonging to a "Drive-It-Yourself" company. Through the records of that company the police obtained the name and address of the appellant and arrested him an hour or two after the accident.

Joe Saunders testified that the three automobiles were moving southward along Main Street at a speed of about twenty-five miles per hour, and that, as the three automobiles approached 30th Street, appellant turned his machine to the left and attempted to pass the Harbaugh automobile. Saunders fixed the speed of the appellant's automobile while he was attempting to pass the automobile in front, as thirty, thirty-one or thirty-two miles per hour. Saunders further testified that the Harbaugh automobile did not turn to the right before appellant started to pass it. He did not see deceased at all until he saw her body rolled along the pavement toward the Harbaugh automobile just as the appellant's automobile attempted to pass. Saunders stopped his automobile and assisted other persons in carrying deceased out of the street.

The evidence offered by appellant tended to show that it was dark at the time of the accident and that it was foggy and misting and difficult to see. His own testimony and that of other witnesses tended to prove that he had not been drinking and that he was not intoxicated. He said that he was driving at the rate of fifteen to eighteen miles per hour and was following the Harbaugh automobile as it moved up grade toward 30th Street. He did not attempt to pass that automobile at all. At about the intersection of 30th and Main Streets the Harbaugh automobile swerved sharply to the right and he continued to move straight ahead without increasing his speed. He saw nothing in front of him and never saw deceased until his automobile struck her. He immediately put on the brakes and stopped his automobile about the middle of the block south of 30th Street. He went back to the Harbaugh automobile and talked with the ladies there. He then returned to his automobile to park it out of the traffic so that he could go back to the scene of the accident. Seeing some persons carrying Mrs. McBane away, he drove home to tell his wife of the accident and to report it at a police station near his home. His arrest occurred before he had time to make such report.

Appellant had driven automobiles for ten years. He offered proof tending to show that his reputation for sobriety and being a lawabiding citizen was good.

We think that the evidence was of such character as to authorize the submission of the case to the jury. It is true the appellant's testimony tended to show that he was not negligent; but the State's testimony tended to show that he had been drinking to such an extent as to be noticeable on his breath and to affect his speech; that he drove his automobile at a rate in excess of thirty miles per hour in an effort to pass the automobile in front of him; when it was so dark and foggy, according to his own testimony, that he could not see more than a few feet ahead of his automobile. In passing the automobile in front, he must have known that he would pass close to the street-car tracks at the intersection of 30th and Main Streets where persons were liable to be, and properly could be expected to be, waiting to board the street car. The jury was authorized to say, under this evidence, whether appellant should have seen deceased, or, being unable to see her, should have regulated the speed of his automobile accordingly, and, if so, whether his conduct amounted to a reckless disregard for the safety of others who might be on the street. The facts testified to are sufficient to authorize submission of the case to the jury under the rule announced in State v. Horner, 266 Mo. 109, 180 S.W. 873; State v. Watson, 216 Mo. 420, 115 S.W. 1011, and State v. Emery, 78 Mo. 77.

Assignment 17 of the motion for new trial as to refusal of certain instructions is too general to conform to the requirements of Section 4079, Laws 1925, page 198. [State v. Standifer, 289 S.W. 858.]

An assignment of error made in appellant's brief and sufficiently preserved in the motion for new trial is that "the trial court did not properly...