State v. Zerban
| Decision Date | 13 March 1967 |
| Docket Number | No. 51687,No. 2,51687,2 |
| Citation | 412 S.W.2d 397 |
| Parties | STATE of Missouri, Respondent, v. Edwin Frederick ZERBAN, Appellant |
| Court | Missouri Supreme Court |
Charles M. Shaw, Clayton, for appellant.
Norman H. Anderson, Atty. Gen., Jefferson City, Claude W. McElwee, Jr., Special Asst. Atty. Gen., St. Louis, for respondent.
BARRETT, Commissioner.
Upon an indictment charging manslaughter in that on June 6, 1964, Edwin Frederick (Wimpy) Zerban by reason of culpable negligence (RSMo 1959, § 559.070, V.A.M.S.) in the operation of an automobile struck and killed Gerald A. Jaeger, a jury found the appellant guilty and fixed his punishment at seven years' imprisonment. RSMo 1959, § 559.140, V.A.M.S. Gerry Jaeger was killed in these circumstances: Shortly after midnight, 12:20 to 12:25, on June 5, 1964, Village of St. Ann policemen, Robert Rogers and Gerry Jaeger, were on traffic detail duty at the Airway Drive-in Theatre, 10600 block St. Charles Rock Road. They were setting up a portable flasher-light signal in the middle of the street across from the theatre entrance. The light had been set up 'right at the center of the yellow lines' of the four-lane highway and Rogers had turned it on and it was flashing. As Rogers and Jaeger started walking toward the south side of the street they were struck by a fast-traveling black 1959 Ford Thunderbird convertible automobile and Officer Jaeger was killed. After striking the officers, '(t)hey flew up over the left side of the car,' the automobile 'accelerated and continued west.' The automobile was purchased by and registered in the name of 'Edwin F. Zerban.' There was no license on the vehicle on June 5th and 6th. The next afternoon at his parents' clubhouse on the Mississippi River, near Winfield, Wimpy Zerban was arrested by highway patrol Officers Hall and Palmer as the 'white male' driver of the Thunderbird convertible that had struck and killed Officer Jaeger.
While he contends that his motions for acquittal should have been sustained, it may be said at the outset, although an entirely circumstantial evidence case, that by dint of prompt and thorough police investigation and a carefully organized presentation of testimony the appellant Zerban's guilt was established by an almost irrefragable set of circumstances. The state called thirty-two witnesses, some of them testifying to what at first blush might appear to be an insignificant circumstance but in context became a compelling fact pointing to the appellant's guilt. Therefore, except insofar as it directly relates to the appellant's assignments of error, it is not necessary to set forth the enormous detail necessary to demonstrate the compelling force and sufficiency of the state's proof to sustain the conviction. Suffice to say that the state carefully retraced and accounted for Wimpy's day in and out of Johnnie's Lounge, Hutch's Inn and Kraft's Miracle Lounge from 10:30 in the morning to his driving away drunk from Johnnie's Lounge shortly after 12 o'clock in his Thunderbird with the top down. He and 'his girl' had had an 'argument' and he had gone in and out of Johnnie's Lounge two or three times before he finally drove away alone.
The second assignment in his motion for a new trial is that his motions for acquittal should have been sustained because the state's evidence did not sustain its contention that the defendant 'in operating his automobile, as described in the evidence, was operating the automobile in a culpably negligent manner.' State v. Schneiders, 345 Mo. 899, 137 S.W.2d 439. It is said in this connection that the state did not show that 'the automobile was operated at an excessive rate or in a reckless manner.' It is asserted that at best the evidence shows 'a moderate rate of speed or only slightly in excess of the speed limit' (thirty miles an hour near the theatre entrance) and no circumstance indicating that the driver 'omitted to do any act in the operation of the automobile which would give rise to culpable negligence.' This assignment of error is so interrelated to his first assignment, perhaps dependent on it, that they may be considered as one.
At times the identification of the appellant as the driver of the automobile that struck and killed Officer Jaeger may have been inconclusive and the first assignment in his motion for a new trial is directed in part at least to this vital issue. After the appellant Zerban's day had been accounted for and after tracing the course of the Thunderbird and after three eyewitnesses to its hitting the policemen and speeding away, the state's twenty-first witness was Officer Edwards, a detective in the St. Louis County Police Department. Edwards said that on June 6, after Zerban had been arrested, he went to St. Ann and questioned the appellant about the occurrence in front of the Airway Drive-in Theatre. At this point defense counsel, the most experienced lawyer in St. Louis County if not the state in defending criminal causes, asked for 'an interlocutory hearing' before the officer was permitted to testify. The jury was excluded and on direct examination Edwards said that the appellant had made an oral statement to him and that before it was made there were no threats or promises. On cross-examination he said that Zerban had not admitted to him that he was driving the car that struck the two police officers. He briefly related to the court and counsel what he had said and defense counsel made this specific objection: 'I object to his testifying to any statements of the defendant for the reason that by his own statement, by the witness' own testimony there is no incriminating nature to anything the defendant could have said, other than he does not know and that is inadmissible.' The court overruled the objection and Officer Edwards testified that But as to the automobile that struck Officers Rogers and Jaeger: 'He told us that he owned a 1959 Ford Thunderbird convertible and that the automobile had been in the repair shop at the Custom Auto Body Shop on St. Charles Rock Road since about the 15th day of May and that he was due to pick up the automobile on Friday, June 5th and that he did go to the Custom Auto Body Shop and paid money for the repairs on the automobile in the amount of $27.50 but that he did not drive the car away from the repair shop that day.' In his motion for a new trial the admission of this testimony is assigned as error for the reasons (a) that the 'statement did not contain any matters that were incriminating to the Defendant as to the charge of Manslaughter,' (b) that the statement 'did not in any way add any links in the State's case of culpable negligence' and (c) that the statement as testified to by the officer was 'in violation of the hearsay rule.'
There is no problem here as to the voluntariness of any statement Zerban may have made, there was no such claim or objection and, of course, despite the hearsay rule, if he made any incriminating statements, untrue denials evincing a consciousness of guilt, they would constitute admissions against interest and be admissible in evidence. State v. Harrell, Mo., 383 S.W.2d 554, 555; 22 A C.J.S. Criminal Law § 730, pp. 1024--1033.
The first state's witness was the manager of the Custom Auto Body Shop and he said that on Friday, June 5, 1964, 'about 5:00 o'clock closing time' Zerban came to the body shop 'to pay the deductible and pick up the car,' a black 1959 Thunderbird convertible that he had repaired. This witness said that Zerban drove away and at that time there was no damage to the windshield, headlights or front end of the automobile. As indicated, several witnesses who knew Wimpy and his Thunderbird well saw it parked at Johnnie's Lounge, one, a regular habitue of Johnnie's, said that about 7:00 o'clock, at Wimpy's request, he had gone outside and '(h)elped push the car out toward the Rock Road so he could get it headed forward.' At 11:45 a St. Ann patrolman on his way to pick up a relief officer passed Johnnie's and he saw a 1959 black Thunderbird parked there, he, as well as others, noticed the automobile because the top was down and it was raining. In a few minutes, shortly after 12, another friend and habitue of Johnnie's, standing at the bar and looking out a window, had seen Wimpy go outside, come back in and speak to his girl, go outside again and finally he testified, 'He (Zerban) pulled out and left the premises' in the Thunderbird. The black automobile, top down, with a white male driving was next seen by Ervin Eltinge a quarter to a half mile east of the Airway Theatre as both drivers stopped almost abreast at a stop sign. State v. Carlson, 325 Mo. 698, 29 S.W.2d 135. Eltinge particularly noticed the car because 'it kind of shoved me over onto the right side' (State v. Jones, 306 Mo. 437, 447, 268 S.W. 83, 86) and '(a)ll of a sudden he seemed to be accelerating at a greater speed and he left me behind.' But as Eltinge followed and approached the theatre entrance the Thunderbird 'seemed to be straddling the dividing line (yellow line) on the other side and he seemed to meet with two objects, which at that time I took for cardboard boxes, flying through the air.' Ahead of Eltinge on St. Charles Rock Road was Jeffrey Rissman, a St. Louis University student, and his date Linda. As they approached the theatre entrance, driving in the outside lane, 'a block and a half away' they saw two policemen in the street (State v. Bolle, Mo., 201 S.W.2d...
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