State v. Morris
| Decision Date | 12 November 1957 |
| Docket Number | No. 45930,No. 1,45930,1 |
| Citation | 307 S.W.2d 667 |
| Parties | STATE of Missouri, Respondent, v. Marion MORRIS, Appellant |
| Court | Missouri Supreme Court |
Louis Kranitz, Theodore M. Kranitz, St. Joseph, for appellant.
John M. Dalton, Atty. Gen., Robert T. Donnelly, Sp. Asst. Atty. Gen., for respondent.
Defendant was convicted of manslaughter, a felony, and his punishment assessed at six months imprisonment in the county jail and a fine of $500. See Sections 559.070 and 559.140 RSMo 1949, V.A.M.S. The charge was based on culpable negligence in the operation of an automobile causing a collision with an embankment and the death of Judith Kay Swafford, a passenger in the automobile. Defendant has appealed and contends that the evidence is insufficient to sustain in conviction for manslaughter.
We shall state the evidence in a light most favorable to the state, since in determining the submissibility of a criminal case, the state's evidence is considered as true and the state is further entitled to the favorable inferences that may be drawn from the facts proven. Defendant's contradictory evidence is to be disregarded. State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 3; State v. Burkhart, Mo.Sup., 242 S.W.2d 12, 14.
There is substantial evidence tending to show that on October 14, 1955, defendant, age 20, Judith Kay Swafford, age 14, with whom defendant was keeping company, James Rhodd, age 20, and his date Shirley Jean Short, age 15 years, left Shirley's home in St. Joseph, about 7:30 p. m., in a 1955 V-8 Chevrolet automobile for the purpose of attending the Central-Wentworth football game that evening at Lexington, some eighty miles away. Before leaving St. Joseph, the boys stopped at a liquor store and purchased three handy packs of malt liquor and a pint of wine. Defendant, in his own behalf, testified that he purchased six cans of beer, which his evidence showed to be a fermented beverage containing 5.35 per cent of alcohol by weight. Defendant and James started drinking the beer after they made a stop at the Pine Tree gas station on Highway 71. Kay opened two cans and handed one to defendant and one to James. The process was repeated from time to time and James drank six cans of beer before they reached Lexington. While James did not know exactly how many cans of beer defendant consumed, he testified, 'I think Marion (defendant) took a can every time.' Defendant testified that he drank three cans of beer and his date (Kay) drank two and one-half cans. The state's evidence was to the effect that neither of the girls drank any of the beer.
The parties came through Liberty, Excelsior Springs, and Richmond and arrived at the game in Lexington just after the end of the second quarter. They sat in the bleachers until about 10 p. m. and, just before the game was over, they returned to the automobile, where they sat and visited. The wine bottle was opened and passed in the automobile and James and defendant both drank from the bottle. As the crowd was leaving the ball game, the parties started back toward St. Joseph. Defendant was operating the automobile. Kay sat to his right in the front seat, with James in the back seat behind Kay. Shirley sat to James' left behind defendant.
In Richmond, the automobile 'shot' through a caution light--went through pretty fast--and a police officer, in uniform, stepped out from between two cars and said 'Halt', but defendant did not stop, he speeded up. It was a three-light-stop, 'in the process of changing from green to red, and it was in the middle, it was the yellow light, on the way down,' when defendant went through. James further testified: 'We was going through I believe the main part of town and we passed all the cars on--that was in the right lane, and we were in the left lane. We were passing cars, and as we went past the man stepped out and yelled When one of the girls told defendant he had better slow down, defendant said: 'I'll slow down as soon as I get out of town here.' After the officer had stepped out and said 'Halt' and after defendant had speeded up, he was driving at '65 and up,' in Richmond, and before reaching the city limits. Defendant testified that between Richmond and Excelsior Springs, Other evidence showed that defendant left the city limits of Richmond and entered the highway at around 65 or 70 miles an hour and, after he was out of the city limits, he increased speed to around 90 miles per hour. At that speed he passed an automobile and, 'around three minutes later, maybe sooner than that,' when they were back in their own lane, the wreck happened. James testified: 'Well we passed this car and Marion turned to Kay and he said, 'See if this car has a red light on behind us,' and, when he said that, why all three of us, Kay and Shirley and myself, turned around to see, to look at the car behind us, and we seen that there wasn't any red light, so we turned around, and just about maybe a minute or two, then, why then * * * I heard rocks and gravel hitting the pan, the side of the car, and I thought we had a flat, * * * and just about that time I heard a girl scream and I threw this arm out here, and that's all I remember till next morning.' James did not know whether there was a flat or not, but said that 'the back wheel was off the pavement at the time.' That's why he figured they had a flat.
There was other evidence that, after the defendant left Richmond, Shirley 'yelled' for him to slow down; and that, just before the collision, after they had, on request, looked back to see if there was a red light on the automobile following them, Shirley asked defendant 'to please slow down,' but defendant did not answer and did not slow down, 'he was going too fast.' Kay asked defendant to slow down just before the collision. When defendant failed to slow down on Shirley's last request, she put her face down on her hands, because she was scared, and 'right then it crashed.'
Shirley was knocked unconscious by the impact. She testified: 'Well, it just knocked me out, I guess.' She regained consciousness in a few minutes and found that she was lying on the ground in a field on the north side of the highway, opposite from where the automobile had come to rest. Kay was lying on the same side of the highway 'down a ways' to the west. James was lying 'right next to' Shirley in the field. He too had been knocked unconscious. Where defendant fell after the collision does not appear, but defendant testified that he received a concussion, a laceration on his head and a broken knee cap; that he was hospitalized eight to ten days; and that he first regained consciousness in the hospital at St. Joseph.
The scene of the collision was about five miles east of Excelsior Springs. When the coroner of Ray County arrived at the scene about 10:30 p.m., he found Kay's body was on the north shoulder of the highway, almost opposite where the automobile had come to rest. Apparently it had not been disturbed after the collision. He noted certain injuries at the time, and determined she was dead, but made a further examination at the funeral home in Excelsior Springs. There had been no change in the condition of the body from the first time he saw it, until the final examination was made.
At the scene of the collision, the coroner noted that 'there was blood and dirt over her (Kay's) face, her hair was all mangled.' There was a bruise on her face, on her chest and on her left limb and she didn't have any pulse, she was dead. In his subsequent examination he found a depression in her skull, at its base, on the right hand side. The depression was about the size 'of a quarter of a dollar.' There was blood practically all over her head and around her face and eyes and in the depressed area of the skull.
The evidence further tended to show that Kay had attended school in St. Joseph on the day of her death. She seemed to be in good health and normal in every way. She visited with the others on the trip to Lexington and made no complaint as to any illness at the game or afterwards. The state's witnesses noted nothing unusual in her appearance. She talked to the others after they left Richmond, and she was seen to look back, when requested to do so, immediately before the collision. There was no odor of alcohol about her body after her death.
There was other evidence as to the speed at which the automobile was being operated by defendant at the time of the collision. The collision occurred as the automobile was rounding a curve to the left, where the road turned from northwest to west. Two members of the State Highway Patrol arrived on the scene about 11 p.m. following the collision. The automobile operated by defendant had not been moved from its location on the south shoulder of the highway, nor had Kay's body been moved from its position north of the highway and east of where the automobile had come to rest. The top, front, back and both sides of the automobile were so damaged that it was estimated to be a total loss. Defendant's counsel, on two occasions, developed hearsay testimony tending to show the wrecked automobile had three flat tires. The patrolmen observed the physical conditions existing upon their arrival as follows: Beginning at a point 150 feet east of where the automobile had struck an embankment on the north side of the highway, there appeared to be a mark on the edge of the slab where the automobile had left the pavement on entering the curve. Proceeding further west, there were skid marks on the north shoulder of the highway, on the grass and gravel, as if the brakes had been put on hard. There were gouge marks on the embankment where the collision had occurred, and at three other places to the west, but across the grade ditch on the north side of the road, indicating that the automobile had...
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