The State v. Winkler

• Decision Date: 05 June 1925
• Docket Number: 26108
• Citation: 273 S.W. 1040,309 Mo. 28
• Parties: THE STATE v. GUS WINKLER, Appellant
• Court: Missouri Supreme Court

273 S.W. 1040

309 Mo. 28

THE STATE v. GUS WINKLER, Appellant

No. 26108

Supreme Court of Missouri

June 5, 1925

Appeal from St. Louis City Circuit Court; Hon. Victor H Falkenhainer, Judge.

Affirmed.

Harry F. Russell for appellant.

(1) Prejudicial error was committed in the instruction defining culpable negligence. Kasle v. United States, 147 C C. A. 561; Peterson v. United States, 130 C. C. A 400; Konda v. United States, 166 F. 93; Case Note, 22 L. R. A. (N. S.) 833; State v. Ebbeler, 222 S.W. 396; Ex parte Taft, 225 S.W. 461. (2) Prejudicial error was committed in the instruction defining "reasonable" and "ordinary care" and "caution." Authorities above. (3) Prejudicial error was committed in overruling defendant's demurrer.

Robert W. Otto, Attorney-General, and James A. Potter, Special Assistant Attorney-General, for respondent.

(1) The court did not err in its definition of culpable negligence as defined in Instruction 2. This exact instruction has been approved in numerous decisions of the Supreme Court. State v. Coulter, 204 S.W. 5; State v. Miller, 234 S.W. 813; State v. Emery, 78 Mo. 77; State v. Horner, 266 Mo. 109; State v. Watson, 216 Mo. 420; State v. Grote, 109 Mo. 345; State v. Henson, 106 Mo. 66. The cases relied upon by appellant are cases involving statutes which make the question of intent or the question of knowledge one of the essential elements of the crime. In this case the question of intent or knowledge is immaterial, as the appellant may be convicted regardless of the question of his intent to violate the law. Sec. 3264, R. S. 1919; cases supra. (2) The court committed no error in overruling defendant's demurrer at the close of the State's case, and if the court committed an error in overruling such demurrer such error is not now reviewable. The appellant offered a demurrer at the close of the State's evidence. After this demurrer was overruled the appellant offered testimony in his own behalf, and failed to renew his demurrer to the evidence at the close of the whole case. In view of appellant's failure to renew the demurrer at the close of all the evidence the ruling on the demurrer in the first instance is not now reviewable. State v. Starling, 207 S.W. 767. (3) The evidence introduced in the trial was sufficient to authorize the court to submit the case to the jury. Where there is substantial evidence of guilt the Supreme Court will not overrule the action of the trial court. State v. Selleck, 199 S.W. 129; State v. Underwood, 263 Mo. 685; State v. Starling, 207 S.W. 767.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On January 19, 1923, the Assistant Circuit Attorney of the City of St. Louis, Missouri, filed in the circuit court of said city his verified information against said defendant, which, omitting caption and verification, reads as follows:

"Roy A. Fish, Assistant Circuit Attorney, in and for the city of St. Louis aforesaid, within and for the body of the city of St. Louis, on behalf of the State of Missouri, upon his official oath, information makes as follows: That Gus Winkler on the 17th day of December in the year of our Lord one thousand nine hundred and twenty-two, at the city of St. Louis aforesaid, was then and there operating, driving and in charge and control of a certain automobile, moving and being propelled upon, over and along Washington Avenue, a public highway of and in the city of St. Louis and State of Missouri; and that the said Gus Winkler while so operating, driving and in charge of said automobile as aforesaid, then and there carelessly, recklessly, feloniously with culpable negligence did drive, propel and force said automobile with great force and violence against, upon and over the body of one Emma O'Dell, then and there and thereby violently casting and throwing the said Emma O'Dell to and upon the ground, and the said Gus Winkler did then and there feloniously and with culpable negligence drive, propel and force said automobile against, upon and over the head and body of the said Emma O'Dell, and then and there and thereby carelessly, recklessly, feloniously and with culpable negligence did give unto the said Emma O'Dell in the manner and form and by the means aforesaid, numerous bruises, wounds, and injuries upon the head and body of the said Emma O'Dell, whereby the life of the said Emma O'Dell was thereby endangered; contrary to the form of the statute in such cause made and provided, and against the peace and dignity of the State."

Upon a trial before a jury on October 17, 1923, defendant was convicted of the crime charged in the information and his punishment was assessed at nine months' imprisonment in the city jail, and a fine of one hundred dollars. A timely motion for a new trial was filed and overruled. Thereafter defendant was sentenced, and judgment rendered, from which he appealed to this court.

After reading the record and briefs, we have reached the conclusion that the statement of the case made by the State is substantially correct and, with a few changes herewith, we adopt the same as follows:

The evidence shows that on the 17th day of December, 1922, some forty children of the Children's Home of St. Louis attended a party at the home of the Young Women's Christian Association located near the intersection of Olive Street and Pendleton Avenue in said city; that the party began at two o'clock in the afternoon and ended at five o'clock in the afternoon; that the children were in charge of their matron, who was Mrs. Ada Wooden; that at about five o'clock in the afternoon Mrs. Wooden, in company with the children, started on their return trip home; that in making their journey home they started north along the east side of Pendleton Avenue and walked north one block to the south line of Washington Avenue; that upon arriving at the south line of Washington Avenue, they were compelled to stop for a few minutes before passing across Washington Avenue on account of the dense traffic at that point; that after waiting a few minutes the matron started north across Washington Avenue with the children following her in a long column, the children marching in double file with the space of something like eighteen inches between each pair of children; that the injured girl was leading two smaller children, one on each side of her, and several pairs of children separated the injured girl from Mrs. Wooden, the matron; that as Mrs. Wooden arrived at or near the center of Washington Avenue, she heard loud screams among the children in the rear and, upon looking around, discovered an automobile plowing through the line of children and dragging beneath it the injured girl, Emma O'Dell.

There was substantial testimony offered on the part of the State to the effect that no alarm was given by the approaching automobile prior to the accident; that Washington Avenue was well lighted at the point where the accident occurred and at the time the accident occurred; that the automobile traveled a distance of fifty feet after the collision occurred. Several witnesses for the State testified that at the time the children started across the street there was a car coming toward them from the west about one block distant, and, while no one positively testified this was the identical car which caused the injury to Emma O'Dell, yet such is the only reasonable conclusion to draw from all the testimony. The defendant admitted at the trial that while his car was 200 feet west of Pendleton Avenue he saw these children on. Washington Avenue out in the middle of the street.

The evidence is undisputed to the effect that the injured girl was knocked down by the automobile and dragged for a considerable distance; that she suffered a concussion of the brain; that she was semi-conscious for two or three days; that she received a scalp wound on the right side of the head where a large bump also formed, and that she also received numerous scratches on her hands and wrists and other portions of the body; that she was confined in the hospital for some eight or ten days.

The real issues in the case may be stated as follows: The evidence for the State tends to show that the children were marching in a solid and continuous column with the line extending from the curb on the south side of Washington Avenue to a point at or near the center of Washington Avenue a distance of from seventeen to twenty feet; that the car sounded no alarm previous to the collision; and that it ran at least a distance of fifty feet after the collision and before the car stopped. The evidence for the defendant tended to show that there was an open space between the south line of the curb on Washington Avenue and a group of children standing near the center of Washington Avenue; that the children were not marching in a solid and continuous column, but that some of them were standing on the sidewalk at the curb on the south side of Washington Avenue, and the rest of the children were standing at a point near the center of Washington Avenue; that the defendant approached the east line of Pendleton Avenue at a slow rate of speed, and that just before he reached the east line of Pendleton Avenue some of the children who had been standing on the sidewalk on the south side of Washington Avenue suddenly stepped out into Washington Avenue and started north to join the children in the center of the avenue; that as soon as the defendant saw the children step into Washington Avenue he sounded his horn and attempted to stop his car, but was unable to do so prior to the collision; that his...