The State v. Hudson

• Decision Date: 28 May 1926
• Docket Number: 26906
• Parties: THE STATE v. IVORY HUDSON, Appellant
• Court: Missouri Supreme Court

285 S.W. 733

314 Mo. 599

THE STATE v. IVORY HUDSON, Appellant

No. 26906

Supreme Court of Missouri

May 28, 1926

Appeal from Boone Circuit Court; Hon. David H. Harris Judge.

Affirmed.

Frank M. Liston for appellant.

(1) The giving of Instruction 1 on behalf of the State was error. This instruction misdirected the jury as to the range of punishment which the instruction informed the jury they should assess in the event they found the defendant guilty. Section 3709, R. S. 1919; Laws 1921, p. 284a, sec. 3248; State v. Sands, 77 Mo. 118; State v McNally, 87 Mo. 658; State v. Tull, 119 Mo 421; State v. Snyder, 98 Mo. 559; State v. Britton, 183 S.W. 295; State v. Harrel, 97 Mo. 105. (2) If the court undertakes to instruct upon a question of law, such question must fully cover the proposition, as much so as if the defendant has requested it. Instruction 1 did not state what was damaged or injured. State v. Harris, 232 Mo. 317. (3) The giving of Instruction C on behalf of the defendant was error. This instruction, sub-section 3, reads: "that said injury was solely and directly due to the culpability that is, the wilful negligence or carelessness, of the defendant, or to an accident for which neither the defendant nor the witness Reid was responsible." This statement requires explanation or qualification, and is confusing or misleading. Beanton v. United States, 213 F. 320; Hooper v. State, 106 Ala. 41; State v. Heed, 57 Mo. 252; State v. Bond, 191 Mo. 555; State v. Conway, 241 Mo. 271; State v. Tevis, 234 Mo. 276; State v. Goodale, 210 Mo. 275; State v. Brown, 209 Mo. 413.

North T. Gentry, Attorney-General, and J. Henry Caruthers, Assistant Attorney-General, for respondent.

The information sufficiently charges the appellant with leaving the scene where injury and damage was done by an automobile without giving his name, residence and motor number to the injured party. Subdivision f, Sec. 27, Laws 1921, 1st Ex. Sess., p. 103.

OPINION

White, J.

By information filed in the Circuit Court of Boone County the defendant was charged with feloniously leaving the scene of the accident where injury to property occurred by reason of a collision with his automobile, and June 5, 1925, he was found guilty by a jury and his punishment assessed at a fine of $ 100 and twelve months' imprisonment in the county jail. He thereupon appealed to this court.

Evidence offered by the State shows that December 6, 1924, one R. P. Reid and his son, on horseback, were driving a herd of cattle from Columbia to his farm about six miles east of that city. Reid testified that when he got about four miles east of Columbia with his cattle, forty-two head in number, he was on the left-hand side of the road near the head of the herd, which was strung along the road on the right-hand side, and his son was driving the cattle from the rear. The road was wide enough to provide a good passway on the north side of his herd. An automobile coming from the east on the south side of the road drove straight into his cattle and struck a number of them. Two of them were knocked down, and one of them so severely injured that it later died. As soon as the automobile struck the cattle Reid called to the driver three times, asking him to stop. The driver did not stop, but kept going. As the car passed Reid he struck and broke in the windshield with a switch which he had in his hand. After the car had passed the cattle, the driver shot twice in the direction of Reid. Near the place, about a hundred yards away, was the home of one Baumgartner, whither Reid went and telephoned the police in Columbia informing them of the incident.

On cross-examination defendant's counsel, for the purpose of indentification, had Mr. Reid to say that he had a civil action pending against the defendant for damages on account of the injury about which he testified, and also that another criminal action, growing out of the same incident, was pending against the defendant. Reid testified further that he did not know whether the occupants of the car were black or white.

Charles Reid, the son, swore to substantially the same facts in relation to the incident. He was driving from the rear, while his father was toward the front, riding along by the side of the herd with only ten or twelve cattle ahead of him. He said that the car of the defendant did not keep to the right-hand side of the road which was clear, but kept to the left-hand side, ran into and struck the cattle, and did not stop. After the car had passed witness, the driver fired two shots in his direction.

L. T. Hopper, Assistant Chief of Police of Columbia, called as a witness for the State, testified that he received a telephone call from R. P. Reid; that he and Policeman King got into a police car, drove to the bridge east of town, and stopped the defendant when he approached in his automobile. He found a revolver on the front seat of the car. The left fender on defendant's car was bent, the left light turned and knocked out of its regular position, and the windshield broken. Policeman King corroborated the statements of Chief Hopper.

The defendant testified that it was dark and foggy; when he discovered the cattle in front of his car he stopped, turned his lights to dim and killed his engine; he heard a voice from some distance, but could not distinguish what was said. Then a man rode up on horseback and asked him why in the hell he didn't come on through, and applied offensive epithets to him and to his wife. The defendant was frightened, got out his gun, stuck it outside the curtain on the left side opposite from where Reid was and fired two shots. Then Reid disappeared. The defendant remained for some time at the spot. The effect of his testimony was that he did not run away from the scene of the accident, but that Reid, in response to his shots, did run away. He said some of the cattle bumped his car, but not hard enough to hurt them or the car. He got out of his car and took out the broken glass and threw it to one side. He also took time to bind the wounds of his wife caused by the broken glass. He was corroborated by her testimony. She said further that she had a hemorrhage followed by a miscarriage. The defendant was permitted to testify to abusive language used by the policeman when he was arrested, all of which was denied by the policeman. The trial court was very liberal in permitting a wide latitude in the introduction of such testimony by the defendant. The officers swore that the wife of the defendant made no complaint, and did not appear to be sick at the time of the arrest.

We have stated the evidence at some length because of the complaint that defendant's demurrer to the evidence should have been sustained.

I. The Attorney-General demands that this court consider only the record proper, because the appeal was taken February 3, 1925; while a transcript of record proper was filed in due time, the bill of exceptions was not filed in this court until April 12, 1926, more than a year after the allowance of the appeal.

In the case of State v. Yates, 256 S.W. 809, we held that where an appeal was not perfected within the year we would not dismiss the appeal in the absence of a motion by the Attorney-General asking such ruling under Section 4107, Revised Statutes 1919. That ruling would apply to this case even if the abstract of the record proper, as well as the bill of exceptions, had arrived here after the expiration of a year. Besides, counsel for appellant files in this court a letter addressed to him April 9, 1926, wherein the Attorney-General tells him it is not appellant's fault that the bill of exceptions was misplaced and not forwarded to the Supreme Court, and that no objection should be made to the consideration of the evidence. In the crowded business of the Attorney-General's office this letter was overlooked when the case was presented. Under the circumstances the appellant is entitled to a hearing on the merits of his case.

II. The defendant offered a demurrer to the evidence which the trial court overruled, and assigns error to that ruling. The evidence was clear and substantial in support of the...