State v. Souhrada

• Decision Date: 12 April 1949
• Docket Number: 8858.
• Parties: STATE v. SOUHRADA.
• Court: Montana Supreme Court

204 P.2d 792

122 Mont. 377

STATE v. SOUHRADA.

No. 8858.

Supreme Court of Montana

April 12, 1949

Appeal from Thirteenth Judicial District Court, Big Horn County; Guy C. Derry, Judge.

Robert J. Souhrada was convicted of manslaughter and he appeals.

Affirmed.

H. C. Crippen, Rockwood Brown, Horace S. Davis Marion B. Porter, Norman Hanson and William H. Bellingham all of Billings, for appellant.

R. V Bottomly, Atty. Gen., Bert W. Kronmiller, County Atty., of Hardin, Clarence Hanley, Asst. Atty. Gen. and Don Sullivan, Sp. Asst. Atty. Gen., for respondent.

WILLIAM R. TAYLOR, District Judge (sitting in place of BOTTOMLY Justice disqualified).

On August 30, 1947, at about the hour of one o'clock a. m., on U.S. Highway No. 87, and about one and one-half miles west of Hardin, Big Horn county, Montana, Robert J. Souhrada drove an automobile into the rear end of an automobile owned and driven by Herbert Dyckman, in such a manner as to cause the Dyckman car to burst into flames and burn to death three of the occupants of the car; namely, Sam Redding, Jr., Shirley Redding, and Marie Baker; following such collision, the Dykman car traveled a distance of approximately one hundred fifty feet, where it crashed into a Montana highway patrol car which had been approaching from the opposite direction and which had come to a stop at the east end of a bridge, and caused the death of Leo Shonrock, a city policeman of Hardin, Montana, who had been riding in the Montana highway patrol car, by crushing him between the patrol car and the railing, or a guard post of the bridge. Defendant was charged with the crime of manslaughter, as a result of the deaths of the three persons who were burned to death in the Dykman car; a jury found him guilty and left his punishment to be fixed by the court; he was sentenced to serve eighteen months in the Montana state prison, at hard labor; and, from this judgment, defendant has appealed. Additional facts of the occurrence will be developed in determining the alleged error in the trial relied upon by the defendant in this appeal.

The information was set forth in form, as approved by this court in the case of State v. Gondeiro, 82 Mont. 530, 268 P. 507. A bill of particulars was furnished defendant, in compliance with his demand, and, because of the stress by defendant throughout the case upon the bill of particulars, the material parts thereof are set out as follows:

'(A) That defendant drove and operated an automobile at the time set forth in the Information, upon and over a highway and public thoroughfare of the State of Montana, in Big Horn County, Montana, while he was then and there under the influence of intoxicating liquor, which fact was an efficient and producing cause of the accident which resulted in the death of Sam Redding, Jr., Shirley Redding and Marie Baker.

'(B) That defendant negligently, wrongfully and unlawfully, at the time referred to in the information, drove an automobile over a highway and public thoroughfare in the State of Montana, in Big Horn County, with a disregard for human life and with an indifference to the consequences of the reckless manner in which said automobile was being driven, and under circumstances incompatible with a proper regard for human life, and with a disregard for his own safety and the safety of others riding with him in said automobile, which acts contributed to and were proximate causes of the death of the said Sam Redding, Jr., Shirley Redding and Marie Baker.

'(C) That defendant wrongfully and unlawfully, at the time mentioned in the Information, drove a motor vehicle on a public highway in Big Horn County, Montana in a grossly reckless, culpable and negligent manner in that he drove said automobile, without maintaining control thereof, and at a rate of speed so great he could not control said automobile, and likewise, greater than was reasonable and prudent and proper, having regard for the conditions then and there existing on said highway, and that the said accident which resulted in the death of Sam Redding, Jr., Shirley Redding and Marie Baker, was caused by such actions on his part, and that his actions as aforesaid, were the proximate result thereof.

'(D) That defendant, willfully, wrongfully and unlawfully, drove and operated an automobile on a public highway of the State of Montana at a speed greater than fifty-five miles per hour during the hours when lights on the vehicles are required, which acts contributed to and were proximate causes of the death of the said Sam Redding, Jr., Shirley Redding and Marie Baker.'

About one o'clock a. m., on August 30, 1947, highway patrolman Robert J. Bragg, accompanied by Leo Shonrock, a city policeman of Hardin, Montana, was driving easterly on U.S. Highway 87, and, at a point about two miles west of Hardin, first observed the Dyckman car approaching him. It was being driven on its right-hand side of the highway, at a speed of about forty-five miles an hour. As the cars approached each other, the Dyckman car's lights were dimmed, as were the patrol car's lights, and the speed of the Dyckman car was reduced to about thirty-five miles per hour. Patrolman Bragg testified that he also observed the car driven by defendant Souhrada, coming from Hardin, westerly, and in the same direction in which the Dyckman car was traveling, and at a speed estimated by Patrolman Bragg as twice as fast as the speed of the Dyckman car, and at a speed of seventy to seventy-five miles per hour. Patrolman Bragg, after driving toward said cars a short distance, stopped his car at the end of a bridge on said highway, got out of his car, and was in front of it, when the car driven by defendant Souhrada crashed into the Dyckman car, caused it to immediately burst into flames and to be propelled, without guidance, to the point where it crashed into the patrol car, and caused it to crush Leo Shonrock between it and the bridge rail, or post. Prior to the Dyckman car's crashing into the patrol car, Patrolman Bragg ran off the side of the highway and, then back to the burning Dyckman car, where he removed from the burning car the two occupants of the Dyckman car who survived the tragedy. Objection was made to the testimony given by Patrolman Bragg as to his estimate and opinion of the speed at which the Dyckman car and the car driven by defendant Souhrada were traveling. There is no merit here to such objection, for any person of ordinary ability and intelligence, having the means or opportunity of observation, is competent to testify to the rate of speed of a moving object. 20 Am.Jur., 'Evidence,' sec. 805, p. 678; 23 C.J.S., Criminal Law, § 875, page 90; Lewis v. Miller, 119 Neb. 765, 230 N.W. 769, 70 A.L.R. 532, 540-550; Enghlin v. Pittsburg County R. Co., 169 Okl. 106, 36 P.2d 32, 94 A.L.R. 1180, 1190-1194; Hastings v. Serleto, 61 Cal.App.2d 672, 143 P.2d 956.

The testimony of Patrolman Bragg, as witness who, by training and experience, could be considered an expert in ordinary traffic problems, was based upon personal knowledge, and, while such observation was made at nighttime, the means or opportunity for him to observe was ideal, for he was on a knoll, or elevation of the highway, and saw the lights of the two cars as they were driven toward him. The weight of his testimony was for the jury.

The witness, William Gurdzinski, a city patrolman, employed by the city of Hardin, testified that he was driving the city patrol car on one of the main streets of Hardin when he saw the car driven by defendant Souhrada, driven from an intersecting street or road, designated here as Crawford Avenue, or the Custer-Hardin road, onto a portion of U.S Highway 87, running through Hardin, without stopping as required, and at a rapid rate of speed; that he pursued the car, but the car drew away from him, despite the fact that he attained a speed of fifty-five miles per hour; that, while in such pursuit he heard the crash and saw the flames arising from the car; and that he then drove into a farm yard and telephoned the Hardin fire department; and then drove on to the scene of the collision. On direct examination, Gurdzinski had stated the car which he followed was the car driven by defendant Souhrada; on cross-examination he stated he had never seen the car before and that it was his inference that the car he saw and followed was the one driven by the defendant. He further testified that the car in question was the only one he saw at the time and until the collision. A motion was made to strike Gurdzinski's testimony at the time this statement was made on cross-examination, again at the conclusion of the state's case, and again at the conclusion of the introduction of evidence. On the theory that Gurdzinski's testimony as to the identity and speed of defendant's car was not properly before the court, and that the testimony of Patrolman Bragg as to the speed of the cars involved was improper, and therefore, no evidence being before the court as to the speed or manner in which defendant drove the automobile, defendant moved, at the conclusion of the state's case and at the conclusion of the presentation of evidence, and requested instructions that the issues presented by items B, C, and D of the bill of particulars be taken from the jury. The motions and instructions were properly denied. While Gurdzinski, on cross-examination, admitted he had not seen the car driven by defendant Souhrada previously, there can be no question but that the car he saw driven onto U.S. Highway...