State v. Renfro

• Citation: 279 S.W. 702
• Decision Date: 11 January 1926
• Docket Number: No. 26481.,26481.
• Parties: STATE v. RENFRO.
• Court: United States State Supreme Court of Missouri

279 S.W. 702

STATE v. RENFRO.

No. 26481.

Supreme Court of Missouri, Division No. 2.

January 11, 1926.

Appeal from St. Louis Circuit Court; Anthony L. Ittner, Judge.

Spencer Renfro was convicted of manslaughter, and he appeals. Affirmed.

Robert W. Otto, Atty. Gen., and W. P. Frank, Asst. Atty. Gen., for the State.

Statement.

BAILEY, C.

On November 28, 1923, an indictment was found by the grand jury of the city of St. Louis, Mo., which, without caption, reads as follows:

"The grand jurors of the state of Missouri, within and for the body of the city of St. Louis, now here in court, duly impaneled, sworn and charged, upon their oath present, that Spencer Renfro on the 2d day of October, one thousand nine hundred and twenty-three, at the city of St. Louis aforesaid, was then and there operating, driving and in charge and control of a certain automobile moving and being propelled upon, over and along Cass avenue, a public highway of and in the said city of St. Louis and state of Missouri; and that the said Spencer Renfro, while so driving, operating and in charge and control of said automobile, did then and there carelessly, recklessly, feloniously and with culpable negligence drive, propel and force said automobile with great force and violence against and upon one James Killoran, then and there and thereby throwing the said James Killoran to and upon the ground and did then and there feloniously and with culpable negligence drive, propel and force the said automobile against, upon and over the head and body of the said James Killoran, and then and there carelessly, recklessly; feloniously and with culpable negligence did give unto the said James Killoran in the manner and by the means aforesaid numerous blows, bruises, contusions, lacerations, wounds and mortal injuries upon the head and body of the said James Killoran, of which said mortal wounds and injuries given and caused, as aforesaid, the said, James Killoran, on the said 2d day of October, 1923, at the said city of St. Louis did die. And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Spencer Renfro the said James Killoran in the manner and form, and by the means aforesaid, then and there feloniously, carelessly, recklessly and with culpable negligence, did kill and slay, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.

                                        Rudolph Schneider
                              "Assistant Circuit Attorney
                "A true bill
                "W. K. Kavanaugh, Foreman."
                

On January 14, 1924, defendant appeared in court, waived the reading of above indictment, and entered a plea of not guilty. He was tried upon the following day before a jury, who returned into court a verdict reading as follows:

"We, the jury in the above-entitled cause, find the defendant guilty of manslaughter, as charged in the indictment, and assess the punishment at imprisonment in the penitentiary for two years.

                                M. Goldberg, Foreman."
                

Thereafter, on the same day, defendant filed a motion for a new trial, and on January 18, 1924, filed an amended motion for a new trial. On the date last mentioned, both motions for a new trial were overruled. On February 23, 1924, he filed a motion in arrest of judgment, which was overruled. Thereafter, on March 28, 1924, allocation was granted appellant, judgment rendered, and sentence pronounced in conformity with the verdict aforesaid. On the date last mentioned, an appeal was granted defendant to this court.

The issues and facts presented in the record are fairly and correctly stated by counsel for respondent as follows:

The facts upon which the indictment in this case is based were the negligent operation of an automobile truck on the public street of the city of St. Louis which resulted in the death of one James Killoran. Stated in small compass, the state's evidence shows that a number of workmen were repairing paving between the tracks of the street railway on Cass avenue. As the bricks were removed from between the tracks, they were piled in the street about 2 or 2½ feet from the rail of the street railway track and about 12 feet from the curb line of the street. This 12-foot space was used by automobiles and vehicles in passing along the street. There were no brick or other obstructions in the street in this 12-foot space. Automobiles and vehicles passed and repassed along this part of the street without interference both before and after the accident. Deceased was seated on a pile of brick about 2½ feet from the rail of the track and about 12 feet from the curb line of the street and was engaged in the work of cleaning brick. A red flag was placed at the east end of the brick pile where it could be seen. Appellant approached from the east, driving an automobile at the rate of 25 miles per hour, and did not slacken the speed of his automobile as it entered the 12-foot space between the curb line of the street and the brick piled along the rails of the track. A companion was seated on the truck with him, and at the time they were engaged in conversation and were looking toward the rear of the automobile. As the automobile traveled westward on this 12-foot space between the bricks and the curb, the automobile struck a telephone post, then ran upon the pile of brick where deceased was sitting, and struck and killed him. At this time deceased was seated on the pile of brick with his back toward the automobile truck and engaged in cleaning brick. The appellant testified that as he approached the place where the paving was being repaired, he saw that workmen were engaged in repairing the street and saw a man sitting on a brick pile; that as he entered the 12-foot space between the brick piled along the track and the curb line of the street, he reduced the speed of his truck to 3 miles per hour. He further testified that bricks were scattered promiscuously over the street on this 12-foot passway; that the wheels of his truck struck a brick and caused the truck to strike the telephone pole; that he started to swing back into first speed and ran up on the brick pile; that deceased started to get up, slipped, and fell down, and the car caught him. The evidence further shows that the telephone pole was about 100 feet from the west end of the repair work on the street and about 55 feet from the place where deceased was sitting at the time he was struck and killed.

This evidence clearly presents an issue of fact for the jury. The state's evidence clearly shows that appellant had a clear passway 12 feet wide, and that appellant by exercising any degree of care whatever could have passed along the place in question without accident or injury to any one.

While appellant maintains that the passway was obstructed with loose brick which caused the accident, the facts are that if appellant had been going at the rate of three miles per hour and giving any attention whatever to the surroundings, this accident would not...