State v. Richardson, 40819.

• Decision Date: 09 February 1932
• Docket Number: No. 40819.,40819.
• Citation: 240 N.W. 695
• Parties: STATE v. RICHARDSON.
• Court: Iowa Supreme Court

240 N.W. 695

STATE

v.RICHARDSON.

No. 40819.

Supreme Court of Iowa.

Feb. 9, 1932.

Appeal from District Court, Ida County; P. J. Klinker, Judge.

Defendant was convicted on an indictment for manslaughter in killing a child, Robert Bevins, by running an automobile upon him, and appeals.

Affirmed.

GRIMM, J., dissenting.J. C. Walter and Ray G. Walter, both of Ida Grove, and Salinger, Reynolds & Meyers, of Carroll, for appellant.

John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.

MORLING, J.

While defendant submits twenty assignments of error, with numerous subdivisions, they may be summarized into three main contentions: (1) That the verdict is not sufficiently supported by the evidence; (2) that the court did not submit defendant's theory of the case to the jury, in that the court failed to instruct on the issue of unavoidable accident; (3) that the court while charging the jury that in order to convict they must find that the defendant drove his car in such a manner as to endanger, and show willful or wanton disregard of the safety of, others should have gone further and charged that reckless indifference not merely to the safety but to the lives of others was essential to conviction.

[1] Defendant is 57 years old, an electrician, and has a Model T 1916 Ford car. The accident occurred about 6:30 p. m., or a little later, about dusk, September 24, 1930. About four o'clock, or later, according to defendant's testimony, defendant drank about four ounces of alcohol diluted with water “about half and half.” Later he worked on his car in the “tie barn.” About 6:30 he drove north upon a north and south street having two paved roadways each 15 feet wide, with a parking between. He drove on the easterly paving. Four children, including deceased, were playing in the street. Melvin Richardson testified that he was on his front porch on the west side of the street and about a half block south of the point of the accident; that when defendant passed his house defendant was driving 35 to 40 miles an hour. “There were no trees or shrubbery on the center parking. I saw him drive up on the curbing (on the east line of the center parking) and strike the boy, dragging him to the pavement, or to the curbing, and then I watched him until he brought the car to a standstill. * * * I would say it is a half a block from where he struck the boy and run up on the curb to where he brought the car to a standstill. * * * I walked up to the defendant right after the accident occurred, took him by the arm and told him I was going to bring him down and turn him over to the city marshal. * * * I turned him over to the city marshal. * * * The defendant was intoxicated at the time he was driving his car and struck the little boy.” Witness did not smell intoxicating liquor on defendant's breath. He says there was a pile of dirt about a foot and a half high in the center parking which defendant drove over. Witness Henry Stamp testified the car had been driven along the center parking in the neighborhood of 50 feet, that the “car tracks went up on the curbing about 10 or 12 feet south from where the first blood stains was. His track run off toward the paved (east) portion of the highway I should think about 50 feet north of the pile of soft dirt across the center parking.”

The father of the boy testified that “The track of the wheels showed where the car had gone up over the center parking about 12 feet south of” where he picked up the boy.

Witness Ed Lampe testified that it was about 80 yards from the point where the defendant struck the child to where his car stopped.

Mrs. McKim, who was in the street north of the place of the accident, testified: “If my eyes are good the car ran up on the parking and struck the child. * * * I saw the children when they came up on to the parking. I saw them playing quite a little bit before the child was struck. * * * When defendant got out of the car he said ‘My God what have I done.’ ”

Charlotte, the eight year old sister of deceased, testified that the car drove up on the terrace; “I do not remember when it hit Bobby. It hit him before he got up on the terrace and before the car got on the terrace. Bobby was standing on the curb and that car came and he was standing down on the street then by the curb and the car came and he was standing down on the street then by the curb and the car came and hit him and then went up on the terrace. * * * I saw where Bobby was standing when he was hit. He was standing in the grass. The car came over the curb when it hit him.”

Dorothy, a five year old child, testified: “I did not see the car hit Bobby. He was standing in the grass.”

A seven year old boy, Edward Deal, a witness in behalf of defendant, testified: “I saw the automobile strike Bobby. Charlotte and Dorothy was across the street at the time; the four of us had been playing there together in the center; it was just a little bit before the car struck Bobby that Dorothy and Charlotte went across the street.

“Q. And do you know whether Bobby was--when you were playing there whether it was as if Bobby was following Dorothy and Charlotte when he was struck by the car? A. Yes. * * * I saw Dorothy and Charlotte Bevins run across the street ahead of Bobby. * * * Bobby and I played in the middle of that parking space; we had just stopped playing when the car struck Bobby; I saw the car strike him; the car came up on the curb to strike him.”

A number of witnesses testified defendant was intoxicated, and others that he was not. At that time, or shortly before the time of the accident, one of them, Tenney, testified that about five o'clock defendant was intoxicated and “was having quite an argument with Mr. Bossard, Senior. Mr. Bossard tried to quiet him, but Fred (defendant) wanted to fight. He finally quieted down and then they were going to settle up about some storage.” The defendant talked coherently.

Another witness, Plantz, testified that about five o'clock defendant in walking over to the restaurant “walked quite wabbly and catty cornered. I saw him walk back to the barn. Walked about the same. He was intoxicated at that time.”

Defendant signed a written statement to the sheriff that about four p. m. a man whom he did not know “sold me a 1/4 pint of alcohol. * * * I drank it all alone out in the country. * * * There were two children who ran across the right side of the avenue. In trying to avoid one of them I struck the other boy on the left side of the street going north. I stopped the car up about half a block and walked back where the father was just picking him up. * * *” Defendant testified: “The alcohol I drank might have stimulated me a little but it soon passed away; it did not leave any depressing effect on me; at the time I met Hansen I was natural, without intoxication, it was probably at fifteen minutes after five, some place along there; after meeting Hansen I went back to the tie barn. * * * I left the tie barn in my car about a quarter to seven. * * * it was about dusk * * * I was not driving over 15 miles an hour when I turned the corner; it would be impossible in that distance to get over 15 miles an hour in a car like that; I turned my lights on * * * when I got up north of the last crossing there at Iowa Street there was two children, two little boys, one of them run across the street and the other one, he was all right, and the other run right in front of the car, and I jerked the car to the left to avoid hitting him and in doing that that run me up on that parking in the center; I did not--at that time I did not see this other one standing where he was; I didn't know that I had hit him and as soon as I got up a little ways I see, after I had got by this one that I had dodged, I seen that something was wrong, and so I cut back over onto the paving again and stopped and got out and went back; I don't know how many feet north the car was, I paid no attention to it at that time and have not been back there since. It was two little boys I saw crossing the street. * * *

“Q. Did you do all in your power at that time to avoid hurting or injuring this Bobby Bevins? A Well, that--he wasn't the one that I dodged.

Q. You didn't see him at all? A. I didn't see him; I didn't know that he was there in front of the car when I jerked it; I wasn't watching anybody else; I was watching the one I was dodging.

Q. Did you do all in your power at that time to avoid the one you were dodging, and accidentally in so doing hit the Bevins boy? A. Yes sir. * * * I was sober. * * * Mr. Stamp was here; I told him what had happened and how I felt about it; I told him I was all in over it; that I dodged one and hit another one that I didn't see. * * * I didn't know who the boy was that I dodged and missed with my car; all I saw was the two boys; I didn't pay any attention to anything else. * * * I had the car under control at the time I saw some kid or kids running across the pavement; at the time I saw the child there was no time to put on any brakes; the only thing I could do was jerk the wheel and dodge him; it all occurred in an instant. * * * I didn't know I had struck the boy until I got by there; I looked around through the back glass and seen there was something. I didn't know what it was then, and then I got it back into the street and stopped; I didn't know I had hit this little boy at that time. * * * It was two little boys I saw crossing the street.”

Mr. Bossard testified that he saw defendant about 5 o'clock; “He was not full at that time when I seen him last right round 5 o'clock. * * * I had some conversation or dispute with him at the tie barn.” “He asked me if I could move my truck and I told him I would but I didn't think he had better drive it. * * * I just merely said that; just merely kidding too, in a way, because I didn't think he was so intoxicated that he couldn't drive his car.”

Hansen, called for defendant, testified: “I would not say in my opinion that the...