State v. Thomlinson
| Decision Date | 13 December 1929 |
| Docket Number | 39973 |
| Citation | 228 N.W. 80,209 Iowa 555 |
| Parties | STATE OF IOWA, Appellee, v. J. H. THOMLINSON, Appellant |
| Court | Iowa Supreme Court |
Appeal from Des Moines District Court.--JAMES D. SMYTH, Judge.
The defendant was indicted for the crime of manslaughter, in that he "did willfully, unlawfully, and feloniously, with gross negligence and recklessness, so manage and drive a certain motor car * * * that thereby, and by reason of said gross negligence and recklessness," he did inflict upon the body of Ralph Drinkall mortal wounds, from which the said Drinkall did die, April 29, 1928. Upon a plea of not guilty trial was had to a jury, resulting in a verdict of guilty. Judgment was entered thereon in conformity to law. The defendant appeals.
Affirmed.
Arthur Springer, Seerley & Clark, and John Hale, for appellant.
John Fletcher, Attorney-general, and Neill Garrett, Assistant Attorney-general, for appellee.
DE GRAFF, J.
The primary question involved in this case is the speed with which the car was driven by the defendant at the time Ralph Drinkall was hit by said car, the impact resulting in his immediate death. The evidence offered by the State and by the defendant on this question is in conflict, and the verdict of the jury determined this disputed fact, and there is no occasion for this court at this time to review this proposition. In this connection it may also be said that the question of contributory negligence is never a defense or excuse for crime, nor can it in any degree serve to purge of its criminal character an act otherwise constituting a public offense. State v. Moore, 129 Iowa 514, 106 N.W. 16. Nor is express intent an essential element in the crime of manslaughter. Negligence and reckless indifference to the lives and safety of others will supply the intent, for the purpose of criminal law. State v. Moore, supra.
The errors relied upon by defendant for a reversal, other than the sufficiency of the evidence to sustain the verdict, have to do with certain rulings by the trial court relative to the admission of testimony, to which we will presently refer. A brief reference to the facts may be stated.
On Sunday, April 29, 1928, the defendant Thomlinson was driving north on U.S. Highway No. 61, which runs through the west edge of the town of Mediapolis, Iowa. The time was about 7:30 P.M. His car was a Chevrolet coach. On that day, he had taken his family and one Paul Swafford to Galesburg, Illinois. Thomlinson was 32 years of age, and lived at Morning Sun, Iowa. At the time of the accident, Thomlinson was making his return trip to his home. The decedent, Drinkall, was 24 years of age. Immediately prior to the accident, Drinkall was crossing the street, and when hit by Thomlinson's car, was within one step of being off the pavement. Drinkall was hurled into the air some 10 or 15 feet, and landed in a driveway of a filling station, a short distance from the pavement. At the time of the impact, it was dusk--almost dark. The accident happened within the corporate limits of the town. There was a sign on the southern boundary of the town on this highway on the east side thereof, about 5 or 6 feet tall, and 2 to 2 1/2 feet broad. This sign stated: "Residence District Speed limit 25 miles." There is testimony of one witness for the State that he overheard a conversation, immediately after Drinkall was hit, between the defendant and a questioner, who asked Thomlinson how fast he was going, to which answer was made: "I heard him say he was going 45 or better, and had been going faster before that." It is sufficient to state that several witnesses for the State testified as to the speed of the car and that, immediately prior to the accident, or at the time, he was driving from 40 to 45 miles an hour. One witness stated, between 45 and 50 miles. Another witness testified that he asked the defendant, "How fast were you driving, brother?" and that Thomlinson hesitated for a moment, and answered, "I think about 45 miles an hour." This answer was followed by another question, "Don't you think that is pretty fast?" to which Thomlinson replied: One witness for the defendant testified that, in his best judgment, the Thomlinson car "was going about 30 miles an hour," and on cross-examination, he said:
The defendant himself admits he saw a speed-limit sign, "maybe a little better than a quarter of a mile south of the main intersection," and that he was familiar with the highway and the street crossings in the neighborhood where the accident occurred, and had been so acquainted with them for seven years. He finally admitted: "I do not know how fast I was going." Swafford, who was riding with the defendant, testified: "I judge we were going right around 20 or 25 miles an hour when we hit him." This witness was 16 years old, and was employed by Thomlinson at the time of the accident.
We may point out at this time that the mere driving of the car by defendant at a rate of speed in violation of a city ordinance would not per se make the defendant guilty of manslaughter, even though the death of a person did result therefrom. State v. Clark, 196 Iowa 1134, 196 N.W. 82. But if the conduct of the defendant was utterly careless and abandoned, and in reckless disregard of the rights of other people or pedestrians upon the highway, then a conviction of manslaughter is sustainable. People v. Schwartz, 215 Mich. 197 (183 N.W. 723).
The trial court was not in error in failing to direct a verdict at the close of all the testimony. A fact question was presented, and we are not inclined to disturb the verdict rendered by the triers of the fact.
I. One Inghram was called as a State's witness as to the question of speed. Inghram had driven an automobile since 1910, and at the time of the accident, was employed at a filling station, which was, as the witness testified, about 140 steps from the intersection where the accident happened. He was, therefore, about 450 feet from the intersection. He was asked to express his opinion as to the speed of the Thomlinson car at the place he...
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