State v. Sawyers

• Decision Date: 05 March 1935
• Docket Number: No. 34008.,34008.
• Citation: 80 S.W.2d 164
• Parties: THE STATE v. LOREN SAWYERS, Appellant.
• Court: Missouri Supreme Court

80 S.W.2d 164

THE STATE v. LOREN SAWYERS, Appellant.

No. 34008.

Supreme Court of Missouri, Division 2.

March 5, 1935.

Appeal from Dade Circuit Court. — Hon. C.A. Hendricks, Judge.

REVERSED.

W.S. Pelts for appellant.

Roy McKittrick, Attorney General, and Olliver W. Nolen, Assistant Attorney General, for respondent.

(1) The information properly charges appellant with the crime of felonious wounding. Sec. 4016, R.S. 1929; State v. Brown, 267 S.W. 871; State v. Winkler, 309 Mo. 34. (2) The verdict is in legal form. State v. Hodges, 237 S.W. 1000; State v. Stuart, 316 Mo. 156; State v. Steenbergen, 68 S.W. (2d) 685. (3) Points 1 and 2 are too indefinite and too general to be considered by this court. Sec. 3735, R.S. 1929; State v. Stanton, 68 S.W. (2d) 812; State v. Maness, 19 S.W. (2d) 629. (4) The plea in bar was properly overruled. State v. Moore, 326 Mo. 1204; State v. Bobbitt, 228 Mo. 272; State v. Page, 332 Mo. 96; State v. Toombs, 326 Mo. 988. (5) The demurrer was properly overruled. State v. Winkler, 309 Mo. 37; State v. Brown, 267 S.W. (2d) 870; State v. Ambruster, 63 S.W. (2d) 144; State v. Melton, 33 S.W. (2d) 894.

LEEDY, J.

Appellant and another were jointly informed against in the Circuit Court of Dade County for an alleged violation of Section 4016, Revised Statutes 1929 (Sec. 4016, 4 Mo. Stat. Ann., p. 2824), in that they drove an automobile against J.P. Morris recklessly and carelessly with gross and culpable negligence and in wanton disregard of human life. Upon a separate trial, a severance having been ordered on his motion, appellant was convicted, and his punishment fixed by the jury at a fine of two hundred dollars; judgment was entered and sentence pronounced in accordance with the verdict and he appeals. The case is before us on a full transcript, including copy of the bill of exceptions, but appellant has filed no brief.

A plea in bar, based on the ground of former jeopardy, was interposed by appellant, in support of which he introduced the records and files of the Circuit Court of Dade County in case numbered 4007, wherein the State of Missouri was plaintiff, and appellant herein was defendant. He was there charged with driving an automobile while in an intoxicated condition in said county on August 23, 1933, the date of the offense alleged in the instant case. That both charges grew out of the same automobile collision was not disputed. Appellant's acquittal of the former charge, and his identity as the defendant in each of the cases was established, and the issue, strictly one of law, as to identity of offenses, was by the court determined adversely to him.

The assignments of error in the motion for new trial are, for the most part, so general in terms that, under the statute (Sec. 3735, R.S. 1929, Sec. 3735, 4 Mo. Stat. Ann., p. 3275) we are precluded from examining into them. However, the motion does raise the question of the sufficiency of the evidence, and the propriety of the court's action on the plea in bar. But, in the view we take of the case, it will be unnecessary to determine the latter question, and the conviction will stand or fall on the solution of the former.

At the case of the State's case, defendant offered an instruction in the nature of a demurrer to the evidence. The requested peremptory instruction being refused, defendant stood on his demurrer.

The facts detailed in the brief of the Attorney General are as liberally stated in support of the theory of the State as the record warrants, and we adopt such statement, except in one particular, i.e., we delete the recital that the prosecuting witness, at the time of the alleged offense, was "accompanied by his wife and small daughter." On quite the contrary, it plainly appears from the testimony of the aforesaid witness that he was alone in his car, he having expressly said so in reply to a direct question. There was no reference by any of the witnesses to the wife and daughter being present, nor did either of them testify. As so amended, the statement is as follows: "The evidence on the part of the State was to the effect that J.P. Morris, a student at the University of Missouri, on the 23rd day of August, 1933, was on his way to Bounceton, Missouri, having returned from a visit to his wife's relatives at Golden City, Missouri.

"The crime in question occurred on highway 39 north of Greenfield, in Dade County, Missouri. The prosecuting witness testified he was going approximately thirty-five miles an hour, and in going around a curve he saw in the distance another car, in which defendant and Jim Farmer were riding, approaching from the south. The other car appeared to be about the middle of the highway. He further stated that he endeavored to pull his car to the right of the road as much as possible but was unable to do so and the two cars struck practically `head on,' It appears further from the evidence that all of the occupants of both cars received severe injuries and both cars were considerably damaged. Other witnesses testified that the highway was clear and unobstructed for a distance of more than one hundred yards and that the curves were regular at the point in question.

"At the time of the trial prosecuting witness Morris had pending against the defendant a damage suit as a result of the injuries sustained at the time of the crime. The defendant was sitting in the driver's seat after the accident, and the other occupant of the car, Mr. Farmer, was lying on his back in the road. Near him were several broken bottles and a wooden box containing bottles."

Other facts will be discussed in the course of the opinion.

Can this showing be said to be sufficient to authorize the submission of the case to the jury? We think not. The statute under which appellant is charged (Sec. 4016, R.S. 1929, Sec. 4016, 4 Mo. Stat. Ann., p. 2824) provides as follows: "If any person shall be maimed, wounded or disfigured, or receive great bodily harm, or his life be endangered, by the act, procurement or culpable negligence of another, in cases and under circumstances which would constitute murder or manslaughter if death had ensued, the person by whose act, procurement or negligence such injury or danger of life shall be occasioned shall, in cases not otherwise provided for, be punished," etc. Cases involving the application of this statute, particularly as applied to offenses arising out of the operation of motor vehicles, are increasing with a marked, if not actually alarming, degree of rapidity. In consequence of that tendency, this court, in a very late case, State v. Studebaker, 334 Mo. 471, 66 S.W. (2d) 877, had occasion to review the law herein involved, and in an exhaustive opinion the earlier and practically all of the more recent cases were discussed and analyzed.

[1] It is clear that negligence, to be deemed culpable, within the meaning of the statute, and, therefore, criminal, is something more than ordinary, common-law or actionable negligence. No question arises in this case on the instructions of the court, because not complained of in the motion for new trial, but in order to determine the character of negligence required to be proved to authorize a submission of the case, it will be necessary to examine the cases wherein the term "culpable negligence" is defined. As pointed out in the Studebaker case, the earlier cases gave approval to instructions...