State v. Scheufler

• Decision Date: 28 May 1926
• Docket Number: 26957
• Citation: 285 S.W. 419
• Parties: STATE v. SCHEUFLER
• Court: Missouri Supreme Court

285 S.W. 419

STATE v. SCHEUFLER

No. 26957

Supreme Court of Missouri, Second Division

May 28, 1926

North T. Gentry, Atty. Gen., and J. Herry Caruthers, Asst. Atty Gen., for the State.

OPINION

Statement.

RAILEY C.

The grand jury of the city of St. Louis, Mo., on October 2, 1924 returned into the circuit court of said city an indictment 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 Charles Scheufler on the 17th day of August, one thousand nine hundred and twenty-four, at the city of St. Louis aforesaid, was operating, driving, and in charge and control of a certain automobile moving and being propelled upon, over, and along Broadway at the intersection of Washington avenue, public highway of and in the city of St. Louis and state of Missouri, in which one Christ Verdon was then and there a passenger, and there the said Charles Scheufler, while so driving, operating, and in charge and control of said automobile as aforesaid, did then and there so carelessly, recklessly, feloniously, and with culpable negligence drive and propel said automobile as to cause said automobile to collide with and be struck by a certain street car, and did then and there, feloniously and with culpable negligence as aforesaid, cause said Christ Verdon with great force and violence to be thrown from said automobile, in which he was a passenger as aforesaid, to and upon the ground, then and there and thereby carelessly, recklessly, feloniously and with culpable negligence as aforesaid, giving unto the said Christ Verdon numerous blows, bruises, and mortal injuries upon the head and body of the dead Christ Verdon, of which said mortal wounds and injuries given and caused as aforesaid the said Christ Verdon at the city of St. Louis on the 17th day of August, 1924, did die.

'And so the grand jurors aforesaid, upon their oath aforesaid, do say that the said Charles Scheufler the said Christ Verdon, in the manner and form and by the means aforesaid, then and there feloniously, carelessly, recklessly, and with culpable negligence, did kill and slay, against the peace and dignity of the state.

'[Signed] Rudolph Schneider, Assistant Circuit Attorney.'

On January 5, 1924, appellant waived arraignment and entered a plea of not guilty. The case was tried before a jury and, on said last-named date, the following verdict was returned:

'We, the jury, in the above-entitled cause, find the defendant guilty of manslaughter, as charged in the indictment, and assess the punishment at $ 100 fine and three months in jail.

'Frank H. Bussman, Foreman.'

On January 6, 1925, defendant filed motions for a new trial and in arrest of judgment, both of which were overruled. On April 2, 1926, the court rendered judgment and pronounced sentence on appellant in conformity with the verdict aforesaid. On the last named date an appeal was granted defendant to this court, and on December 5, 1925, he filed his bill of exceptions in the circuit court aforesaid.

A transcript of the record and proceedings was filed in this court on January 2, 1926. We have read the evidence contained in the transcript, and find that the statement made by counsel for the state is fair and accurate. We accordingly adopt the same as follows:

'The testimony on behalf of the state tended to prove the following:

'On Sunday afternoon, August 17, 1924, about 6 o'clock. the defendant, Charles Scheufler, was driving a one-ton Ford truck south on Broadway, St. Louis, Mo. There were no curtains on the car. Seats running lengthwise on each side of the body of the truck, which was surrounded with stakes, contained six persons in addition to the defendant and one other man who was riding in the seat beside the driver.

'Broadway was paved with asphalt and dry and is a public highway used by street cars and all sorts of vehicles.

'The street car stopped on the northeast corner of Broadway and Washington avenue, picked up passengers, and then started across Broadway to go west on Washington avenue. An auto going north caused the motorman to apply the brakes and slow down until the auto passed, and then made an effort to proceed westward. At this time the conductor on the street car noticed defendant's truck coming south on Broadway at a high rate of speed, namely, 25 or 30 miles an hour, about 100 feet north of his car. The street car was then about half way across Broadway and moving at a rate of about 4 to 6 miles an hour, and stopped with the front end about even with the west curb line of Broadway. At this time defendant's truck was about 15 feet away, and he made an effort to turn west, and at the rate of speed he was then going caused his rear wheels to skid and the truck to turn over, the rear of which, in turning over, struck the street car about the first seat back of the vestibule. The truck was then lying on its side on the west side of the street car in a diagonal position with the front part on the track with its wheels toward the west and the stakes toward the street car. In turning the tire on the left front wheel of the truck burst.

'As a result of this collision one Christ Verdon, a passenger on defendant's truck, was thrown out and killed. The cause of death being hemorrhage and shock due to a laceration of the spleen and a fracture of the skull received from the impact. There is some conflict in the evidence of the state's witnesses; some testifying that the truck was going from 12 to 15 miles per hour as it went south on Broadway, and then slowed to about 8 miles as it approached the intersection of Broadway and Washington avenue where the collision occurred.

'It was shown that there was no obstruction of any character on the north side of Washington avenue just off the Broadway intersection, and that there was a clear space of 12 feet between the north rail of the west-bound track and the curb line, and that the truck turned over before striking the street car.

'The testimony on behalf of the defendant tended to prove the following:

'That defendant was operating on August 17, 1924, a one-ton Ford truck and drove south on Broadway from Baden at 6 p. m.; that several men were riding with him. At Lucas avenue he was going from 12 to 15 miles an hour, slowed down to 8 miles at Broadway and Washington avenue. Here he saw a street car on the east side of Broadway and an auto coming north on Broadway and when the latter crossed he intended to cross with it. The street car came on and speeded up without sounding its gong just after the auto passed. The defendant was then compelled to turn into Washington avenue, and as he turned the street car struck his truck from the rear and turned him over toward the south. Defendant was not thrown out of the truck, but got out afterward and saw some of the other men sitting and lying on the ground, including the deceased. He saw the street car conductor here, and asked him if he saw the accident, and he told him he did not; that he was on the back end of the car.

'It appeared to the defendant that, under all the circumstances and conditions at the moment, he had ample opportunity to go south on Broadway, and that he turned into Washington avenue to avoid a collision.

'On cross-examination defendant testified that he was about 20 feet from the street car when he noticed it...