State v. Murphy

• Decision Date: 11 December 1929
• Docket Number: No. 29810.,29810.
• Citation: 23 S.W.2d 136
• Parties: THE STATE v. HARRY MURPHY, Appellant.
• Court: Missouri Supreme Court

23 S.W.2d 136

THE STATE v. HARRY MURPHY, Appellant.

No. 29810.

Supreme Court of Missouri, Division Two.

December 11, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. H.A. Rosskopf, Judge.

AFFIRMED.

Stratton Shartel, Attorney-General, and Don Purteet and Carl Otto, Assistant Attorneys-General, for respondent.

(1) The indictment follows approved forms, and is sufficient. Sec. 3236, R.S. 1919; State v. Watson, 216 Mo 424; State v. Renfro, 279 S.W. 703; State v. Scheufler, 285 S.W. 419. (2) Assignments of error numbered 1 to 19 in defendant's motion for new trial are too indefinite, and preserve nothing for review. Sec. 4079, Laws 1925, p. 198; State v. Jackson, 283 Mo. 24; State v. Whitman, 248 S.W. 938; State v. Scott, 214 Mo. 261; State v. Ritter, 2 S.W. (2d) 754; State v. Standifer, 289 S.W. 856. (3) The trial court properly refused to give appellant's requested instruction numbered 2. The court's instruction numbered 1 covered the law of the case and very properly took into consideration all of the evidence in the case. This was sufficient. State v. Mathes, 281 S.W. 440; State v. Sassaman, 214 Mo. 727. (4) The reference of prosecuting attorney to the defendant as a drunken driver was a reasonable inference from the evidence and as such was not prejudicial. State v. Murray, 292 S.W. 438; State v. Peak, 237 S.W. 471. Argument that defendant did not explain "a thousand other transactions in this case," was not improper and the court's failure to reprimand, being a matter of discretion, does not constitute error. State v. Marshall, 297 S.W. 69; State v. Carey, 278 S.W. 722.

HENWOOD, C.

The defendant was convicted of manslaughter, in the Circuit Court of the City of St. Louis, and sentenced to imprisonment in the penitentiary for two years. In due course, he appealed.

It is charged, in the indictment, that one May Martin was killed as the result of the defendant's culpable negligence in operating an automobile.

The evidence shows that the collision in question occurred on Jefferson Avenue in the city of St. Louis, at or near the intersection of Jefferson Avenue and Armand Street, about nine o'clock in the evening of August 18, 1927. At that point, Jefferson Avenue was eighty feet in width, from curb to curb, and extended north and south. It was paved with asphalt and its surface was dry at the time of the collision. In the middle of Jefferson Avenue were double street-car tracks, extending north and south. The east tracks were used by north-bound street cars and the west tracks by south-bound street cars. Armand Street, extending east and west, intersected Jefferson Avenue on the west, but did not extend east of Jefferson Avenue. Adjoining the east street-car tracks, on Jefferson Avenue, was a safety zone, five feet in width and about the length of a street car, for the use of passengers in getting on and off of northbound street cars. All of the safety zone, except the north four or five feet thereof, was south of the south line of the intersection. The north, east and south boundary lines of the safety zone were plainly marked with yellow paint. The distance between the east boundary line of the safety zone and the east curb line of Jefferson Avenue was twenty-three feet. Jefferson Avenue was well lighted, by a new lighting system, in the vicinity of the safety zone, at the time of the collision. The deceased, Mrs. May Martin, was twenty-five years of age and lived with her husband on Armand Street, near its intersection with Jefferson Avenue. Shortly before the collision, she walked from her home to the safety zone mentioned, with her friend, Miss Beulah Cline, where Miss Cline intended to board a northbound street car. Henry Wessling and Elmer Guth passed that point in a Ford coupe, driving south on Jefferson Avenue. Wessling thought Miss Cline was another young lady with whom he was acquainted, and, at Shenandoah Avenue, one block south of Armand Street, the Ford coupe was turned around and driven back on the east side of Jefferson Avenue to a point opposite the north part of the safety zone. Wessling and Guth saw the ladies at a distance of 150 feet, while driving back north from Shenandoah Avenue. The Ford coupe was stopped about one foot and a half from the east curb line of Jefferson Avenue and about fifteen feet from the safety zone. Wessling said "Hello" to the ladies, and about that time, or immediately thereafter, the ladies were both struck, with great force and violence, by the front end of a Dodge coupe which the defendant was driving in a northerly direction at a high rate of speed. The defendant stopped the Dodge coupe, and abandoned it, about one block farther north, on Jefferson Avenue, and did not return to the scene of the collision. When struck by the Dodge coupe, the ladies were standing in the north part of the safety zone. Mrs. Martin was picked up about sixty feet, and Miss Cline about thirty feet, north of the north boundary line of the safety zone. Mrs. Martin's skull was fractured, the bones of both her legs were broken, above her knees, and she was otherwise injured, as the result of the collision. She died, in a hospital, that night, from a brain hemorrhage caused by the fracture of her skull. There was no automobile moving north on Jefferson Avenue in front of the Dodge coupe nor behind it, at the time of, or immediately before, the collision. It was moving straight ahead, at a rate of speed variously estimated from twenty-five to fifty miles per hour, without swerving to the right or to the left. About 11:30 that night, police officers arrested the defendant at his home. They smelled alcohol on his breath. "He was under the influence of liquor. It looked like he was just coming to, getting over his drunk." The next morning, at the police station, he told one of the officers that he had been with a Mr. Rodgers, who conducted a soft-drink parlor, and had been "drinking." According to the officer, he also said: "I left there about seven in the evening, and, as I remember, I thought there was somebody with me at the time. I rode around. I don't know just where I rode. I remember something happening; a bump of some kind. I remember leaving my automobile a stort time afterwards. As good as I remember, I think I went home on the street car."

At the trial, the defendant testified as follows: "I was driving on Jefferson Avenue. It was about 8:30, I believe, as near as I could tell, and I noticed at Shenandoah a Ford coupe swung around from the west side of the street to the east. I was about fifteen or twenty foot back of this Ford coupe. It got down to Armand Place, it suddenly stopped, and I swung out to go around this Ford, and noticed two ladies standing near the car tracks. Just as I swung out they seemed to step forward right directly into my car before I could stop it. I stopped my car as quickly as I could and run into the curb with my car, and I was highly nervous and I started to get out, and I decided to go on a little ways further, and I was so nervous I didn't know what to do; I got about possibly five hundred feet from where this accident occurred, and I got out of my car again and got onto a street car and from there I went home." He further testified that he told his wife what had happened, and she gave him two hot foddies to "quiet down" his nerves. On cross-examination, he said his car was running at the rate of about twenty-two miles per hour when the collision occurred; and that he checked its speed as soon as he "felt the impact," by applying the brakes "with full force," but it ran about seventy or eighty feet before he could stop it.

His wife was the only other witness in his behalf. She said he was very nervous when he came home, the night of the...