State v. Tucker

Decision Date30 June 1936
Docket NumberNo. 34807.,34807.
Citation96 S.W.2d 21
PartiesTHE STATE v. ROBERT TUCKER, Appellant.
CourtMissouri Supreme Court

Appeal from Circuit Court of City of St. Louis. Hon. Charles B. Williams, Judge.

AFFIRMED.

Leo Rassieur, Jr., and Sigmund M. Bass for appellant.

(1) A mere showing of negligence on the part of an accused in driving an automobile is insufficient to sustain a conviction for manslaughter, and where excessive speed alone is relied upon the evidence is likewise insufficient unless a causal connection is shown between the excessive speed and the death of the deceased. Bibb v. Gray, 231 S.W. 1023; State v. Sawyers, 80 S.W. (2d) 167; Strauchon v. Met. St. Ry. Co., 232 Mo. 507, 135 S.W. 18; O'Donnell v. Wells, 21 S.W. (2d) 765; State v. Jones, 106 Mo. 302, 17 S.W. 369. (2) Where the State relies upon circumstantial evidence alone to establish the corpus delicti, it is the duty of the trial court, when requested, to instruct upon circumstantial evidence. State v. Miller, 292 Mo. 124, 237 S.W. 501; State v. Sawyers, 80 S.W. (2d) 164. (3) Culpable negligence excludes mere carelessness, and it is error for a court to instruct a jury that carelessness can supply the place of recklessness in finding culpable negligence. State v. Studebaker, 66 S.W. (2d) 882; State v. Melton, 33 S.W. (2d) 895; State v. Sawyers, 80 S.W. (2d) 166; Webster's New International Dictionary. (4) It is improper and reversible error for a prosecutor to argue matters outside the record and to appeal to the passions and prejudices of the jury in order to obtain a conviction. State v. Wellman, 253 Mo. 302, 161 S.W. 800; State v. Connor, 252 S.W. 722; State v. Pierson, 56 S.W. (2d) 125.

Roy McKittrick, Attorney General, and Wm. Orr Sawyers, Assistant Attorney General, for respondent; Aubrey R. Hammett, Jr., Special Council.

The remarks in the argument by the prosecutor are not grounds for reversal of judgment where not inflammatory and when based on the evidence. State v. Albritton, 40 S.W. (2d) 676, 328 Mo. 349; State v. Bundy, 44 S.W. (2d) 121; State v. Rodgers, 161 S.W. 770, 253 Mo. 415; State v. Beaghler, 18 S.W. (2d) 428; State v. Rasco, 144 S.W. 449, 239 Mo. 581; State v. Harrison, 174 S.W. 57, 263 Mo. 659; State v. Fitzsimmons, 89 S.W. (2d) 670; State v. Mangercino, 30 S.W. (2d) 763, 325 Mo. 804.

LEEDY, J.

At the April, 1935, term of the Circuit Court of the City of St. Louis, appellant was convicted of manslaughter, predicated upon a charge of carelessly, recklessly, and with culpable negligence operating an automobile, whereby one Marsh Floyd was struck and killed. His punishment was fixed at a term of one year in jail and a fine of five hundred dollars, and he appeals.

The four points briefed by appellant, and relied on for a reversal relate to (1) the sufficiency of the evidence; (2) the giving and refusal of instructions; and (3) alleged improper argument on the part of the State.

The deceased, a pedestrian, met his death while crossing Lindell Boulevard in St. Louis in the early morning hours — about five-thirty — on Sunday, January 21, 1934. Lindell Boulevard runs east and west, and at 4500 west is intersected by Boyle, which runs north and south. The first street west of Boyle is Newstead, and at the intersection of the latter with Lindell, the Cathedral is located. The first street east of Boyle is Whittier. There was a white line marking the center line of Lindell. At the hour in question it was dark, and the street lights were on, and the pavement was dry.

The State's case was made out by the testimony of five witnesses, and an admission as to the testimony of an absent witness. Such absent witness was the autopsy physician, as to whom it was admitted that, if present, he would testify he performed an autopsy on the body of deceased, Marsh Floyd; that deceased appeared to be a white male, about forty years of age, about five feet eight inches tall, weighed about one hundred and thirty pounds, dark hair, and from external appearance, was fairly well nourished. As to his injuries and cause of death, it was stipulated the doctor would testify: "Fractures both legs above ankles; fracture of right wrist; bruises and lacerations about body; scalp lacerated; skull opened — no hemorrhages — no fractures; spine and spinal cord: Fracture 3-4 cervical vertebrae and spinal cord torn; abdominal cavity filled with blood; peritoneum, lacerations; liver crushed and torn spleen crushed and torn; and that the cause of death was broken cervical vertebrae with cord injuries, ruptured liver and spleen and abdominal hemorrhages."

Sally Miles testified that in January, 1934, she lived at 4315 Lindell Boulevard, St. Louis, Missouri; that she was a clerk at the Statler Hotel tobacco stand; that she had known Marsh W. Floyd about seven years; that on the early morning of January 21, 1934, Floyd called for her at 4315 Lindell for the purpose of taking her to six o'clock mass at the Cathedral in the next block, but that Floyd complained of felling ill and decided to return home; that she was due to report to work at the Hotel Statler at seven o'clock that morning; that Floyd went out the front door and started down the street to cross; that she watched him, as she had previously done, it being her custom to wave to him when he reached the other side of the street; that Floyd lived at 4337 Laclede; that 4315 Lindell was a large residence that had been turned into a hotel and was on the north side of Lindell; that 4315 Lindell was about a hundred feet west of Boyle; that as Floyd started to cross from the north to the south side of Lindell she saw two cars pass by, going east on Lindell, and at that time she was in the window; that prior to that time she had ridden in automobiles and observed the speed of different cars at different times; that she could not answer exactly as to the speed of these two cars, but that to her they were going very fast, "terrific to me," — in her opinion about sixty miles per hour. That she then heard a terrible impact and he disappeared; that when she heard this impact she ran into the street, found some shoes on the north side of Lindell, east of Boyle, and found Floyd's body between the center line and the north side of Lindell, about seventy-five or a hundred feet east of Boyle; that Floyd had been struck on the west side of Boyle; that when she saw Floyd on the ground he was unconscious and "the lower part of his limb was hanging loose, the blood was running out of the side of his head, and his eyes were half closed and his mouth half open, and I didn't know then he was dead."

On cross-examination she testified that she and Floyd lived about two blocks from each other and had been keeping company for about four years; that on the morning of January 21, 1934, which was a Sunday, she looked at the clock in the lobby as she came down to wait for Floyd, and it was a quarter after five; that Floyd left about five-thirty; that she and Floyd frequently went to church together; that Floyd was not accustomed to drinking; would take a drink occasionally, but that she never knew him to be intoxicated or under the influence of liquor; that on this particular morning she detected no odor of liquor about him; that they had arranged this meeting on the preceding day, about four o'clock in the afternoon, but that she had not heard from him since that time; that when Floyd left she was following him with her eye, and that when she first saw the two automobiles they were passing the lobby window; that she was looking in a southeastwardly direction at the time; that it was dark at that time and the street lights were on; that she could not describe the cars which she saw, but that one looked larger than a roadster, but that she could not tell about the other one; that the two cars seemed to be even; that she could not tell whether either of these cars was a business vehicle; that she was in such a state of mind that night that the police sent her to the hospital; that she just looked at the cars, heard this terrific impact, Floyd disappeared and she ran out the front door; that she did not see any automobile strike Floyd and could not tell which of the two cars hit him; that she does not remember stating at the coroner's inquest on January 22, 1934, that she did not see the machine before Floyd was struck, but that if she made that statement, she presumes it is correct as her memory was clearer at that time than now; that she had never driven an automobile, was not a very good judge of speed in miles per hour; had never watched the speedometer on a car going sixty miles per hour, but that she had done a great deal of automobile riding around the city.

Ben Owens and his wife, Muriel, testified for the State. He was a buyer and department manager for Famous-Barr Company. They lived at the Gatesworth Hotel. They had had breakfast downtown, and were enroute to their hotel. There were no other passengers in their car. Mr. Owens was doing the driving. They were proceeding west on the north side of Lindell, and were approaching the intersection when and where deceased was struck. Mrs. Owens testified that when their car was about one hundred feet west of Whittier, she noticed two cars coming east on the south side of Lindell, and that they were in the block between Boyle and Newstead; that her attention was attracted by the speed of the two cars, which in her opinion, was between fifty and sixty miles per hour; that the two sets of headlights seemed to be staying fairly even — that is, abreast; that as these cars approached, she turned to her husband, and at that time heard a crash, and the two cars were then at the intersection of Boyle and Lindell — on the south side of Lindell, and on the west side of Boyle. She then saw "an object come hurling through the air, and it dropped directly in front of our car — possibly twenty-five or thirty feet in front of our car," and the minute it hit the pavement she realized it...

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