
    State of Missouri, Respondent, v. John F. Dougherty, Appellant.
    No. 40892.
    216 S. W. (2d) 467.
    Division One,
    January 7, 1949.
    
      
      Wm. Waye, Jr., Dewey S. Godfrey and Rudolph II. Sehurr for appellant.
    
      
      J. E. Taylor, Attorney General, and Robert R. WeTborn', Assistant Attorney General for respondent.
   [469]

CONKLING, J.,

Under Section . 8401(f), R. S. Mo. 19.39, defendant was convicted of feloniously-leaving the scene, of accident and-injury. He was sentenced to one year, imprisonment in the. county jail and to. pay. a fine of one hundred dollars ($100.00). Section 8404(c), R. S. Mo. 1939. Th.e cause originated in the .City of Stv Louis, but, went to St. Charles County, on-change., of venue. Defendant appealed. ,

Briefly, the State’s case tended to show that, about 12:15 A.-. M., December 15, 1946, a gray colored automobile 'travelling north on KingshigWay in the City of St. Louis struck a Yellow taxicab in the. intersection, of Hingshighway and Easton Avenue. The. taxicab, travelling east on Easton, was damaged..and Irene-Schmich, the. sole passenger in the taxicab, and James J. Sneed, Jr., the operator, sustained some.injuries., The. gray colored automobile-was damaged in tfia collision, did, not st.op -at the immediate scene-of the accident, but turned east -on Easton Avenue and moved slowly away. Shortly: after the collision, .a man was seen-trying to. put-down the hood-of a gray colored automobile which -had stopped . on the ’south side - of Easton, near Aubert, a street some 854 feet east of the point of collision.- A, few .minutes later that automobile was gone.:

A police- officer,;who. heard -the collision, arrived at the-scene of accident - within four or five, minutes. He. questioned Sneed, Miss Schmich and bystanders and obtained from Sneed the defendant’s license number and. a-description .of a gray Mercury - automobile! Two other officers later talked-to--Sneed at the scene of the accident. Subsequently,-within an hour,-.after .police radio broadcasts for a 1946-Ford or Mercury.automobile, perhaps, bearing'Missouri license No-5-957,.police officers; who had heard the broadcast and weré en search,located a damaged Mercury bearing this license number near Marcus and Highland,Streets, some-two blocks east-and:four blocks north of the-scene-of-the accident :-That, automobile, carrying .a license number.- (5-957) issued to defendant, was parked near the residence of Mr, Callanan, then the coroner of. the. City.of S.t: Louis; but -no one could- be. located at that-address. Defendant was sought for’ques--tioning,. but could, not be found at his residence-at 8823 Halls Ferry Road.' Hater defendant’s; attorney called the police station at Deer Street ■ and Easton, 10th District, and advised that defendant had been implicated in an accident and that he (the attorney) would have “the driver” at the police station about 9 A. M. About 9:30 A. M.- defendant and his attorney arrived at the 10th District Police Station •'on *Deér Street. 'Defendant told the police captain in' charge (Rowland) that he had had an accident; that he was the driver of-the car ; and that “he evidently dropped asleep at the wheel and his'wife was:ill and for that reason he didn’t remain at the accident”.

Defendant’s evidence tendedlo show that he collided with a Yellow Cab; at Eingshighway and’Easton on the night in question; that his. wife, to- his right in the front seat, was injured; and that he drove east on Easton and parked his ear “right west of Aubert.” He put down'the hood, “which was sitting up,” and then went back to the driver, of the-cab involved in the collision and gave him his automobile license number and a card bearing the words: “John F. Dougherty, Justice óf :the Peace Court (7th District) 2200 St. Louis Avenue. Garfield [470J 6301.” He obtained the driver’s name and saw him (Sneed) write defendant’s license number on a sheet similar' to Sneed’s trip sheet for the morning of December 15, 1946. The trip sheet,' admitted in evidence, had this notation: ‘ ‘ 5957 Mo. 46 Mer. Grey.’?‘-- When defendant talked to Sneed, the taxicab was in the street, north of the street car tracks and east of Kingshighway. Defendant did not help move it. He was at the cab “a very short time” and there was no police officer there. The cab driver was in the cab. and said he was hurt in his chest. He was not dazed or groggy. ' Defendant1 caihe up to the left side of the cab and did not go around to the-right side, nor open the back door. He told the driver that “he. was insured and would take care of everything.” He did not look -in the back of the cab but there was no one there as far as he could see. Defendant returned to his automobile and drove to Mr. O allanan’s house; arriving about 12:30 A. M. He told Mr. Callanan (the coroner)" that he had had an automobile accident. When defendant, reached his own home about 1 A. M., he called his attorney," and. asked him to call the police. About 9:30 A. M. defendant camelo the.Deer Street police station with his attorney and reported to Captain Rowland. Defendant denied the admissions testified to by Captain ■ Rowland. From the police station defendant and his attorney went- to the Yellow Cab Company office, and from there to'Sneed’s residence (but did not see Sneed). A witness, who identified the cab driver’s trip sheet and Sneed’s handwriting, did not know the handwriting of the notation, but said that the paper was Sneed ?s trip sheet for the morning of December 15, 1946.

The information was::in four counts, but the State abandoned Counts One and Three and submitted the cause to the jury on' Counts Two and Four. Count Two charged that the collision was due to accident; that the taxicab:was-damaged-and Snqeid.and.Miss Schmich injured;-and that defendant with Imowlpdge of. such.facts, feloniously left the place, of a.ceident,. damage and injury “without''stopping,' and. without giving his name or.- residence, or city Of. said residence; or street of said; residence, or street number of. said .residence, or the motor vehicle number of.;-said.: -Mercury- automobile”. to- Miss Schmich, Sneed or Mound-City C,ab'¡Company, (owner of the .taxicab); “or, any of them” or to.,any pf the. others .named- in the- statute.Count .Four charged only.injury ,to Miss Schmich alid-knowledge thereof by defendant and.a failurq-to stop'and to furnish'the required information to her or to -the others named in; the statute.; Instru-ctidns1 Four .and Five,' respectiyqly; submitted .these counts-to the-jury and directed a verdict of .guilty upon a Ending -of the facts. .therein -submitted- Speed wag..pot-.mentioned-in'-Count Four;-except as being the. .operator of the taxicab,- and he* was-not. mentioned in Instruction. 5 submitting this count to the jury. Instruction Five was; apparently; drawn and submitted on the,-theory that the- jury might'believe and-find that Miss Schmich was the only injured' party.-' - Defendant ten-' de.red a, demurrer to. the evidence on each, count. The - demurrers w.ere overruled: The.. jury returned a . general' verdict.. of guilty, “guilty of leaving -the scene of accident,, as alleged-in- the information” (no reference to-counts), and; the,-.judgment tad sentence .appealed from was entered thereon, . . ,.- ■ - - - <■ -v.

Appellant .contends- that .the ,s verdict -w-asmot-respónsive-tothe issues submitted and,-that it did,.not show upon -which-count defendant wa,s found guilty, The issue-.turns on whether-two-separate and distinct crimes were .charged-in.the -information and submitted by the instructions. ‘ ‘ The general, rule is, .where an indictment is in two or more counts, each of which charged'the same offense'in-a dif-' ferent form, or. where the several -counts .relate to the.same transé action and are framed on different -sections of • the- statute, to- inhet the exigencies occurring at the trial,- or. -where the several- Counts, state different degrees, of the same, offense,- a general -verdict of guilty will be sustained. .... On the. other hand,! the.ruleds well-established that a general verdict, where .the several. counts of the'indictment'charge several distinct crim-es will not be upheld;” State v. Pace, 269 Mo. 681, 192 S. W. 428, 429.

Counts Two and. Four, .of the-infornration relate-to the same-tráns'-'-action. The crimes charged are the,..same,."The punishment of cach-is the same. Only the proof necessary [471]- to support the, counts' differs. - There. was¡ only-one.accident:and the, essence of the-orie offense charged was the one,of leaving .the¡scene of the' one accident,' without stopping and giving.the- information required-by the* statute.' State v. Hudson, 314 Mo., 599, 285 S. W. 733; State v. Tippett; 317 Mo, 319, 296 S. W. 132; State v. Harris, 357 Mo. 1119, 212 S. W. (2d) 426, 427; Runyon, v. State of Indiana, 219 Ind. 352; 38 N. E. (2d) 235, 237; However; the State contends-that the words “to’the injured party”, as ús’éd in the statute, include the plural (parties)', ■unless there be something in the subject'or Context repugnant to such construction- (Sec. 652 and Sec: 653, B. S. Mo. 1939); that the information required must be furnished to Bach injured -party, or tu a police officer,- etc.,- and-that -a’failure'as to oué injured party, regardless of it'having been furnished to another, constitutes another offense. One'of the -definitions ’o’f -the term “party” as given’in Webster’s International Dictionary■ (Seéond Edition) is' ás-followS: “A person who constitutes Or- is- one' of! those who compose,’ Or a body of persons constituting, one or other of the two sides in an action or affair’; one concerned'in'an ■ affair; a'paftcipatór; as, a'party in’interest; the two: parties iir a marriage Contract;-a'party to plot.”

- ‘•‘'Criminal statutes aré'td b’e construed strictly,'liberally in favor of the defendant,-"and strictly against the-state,-'both as’ to’the charge and thé'proO’f. No oné is.t'O be’md'de Subject to such statutes by implication.” State v. Bartley, 304 Mo. 58, 263 S. W. 95, 96; State v. Taylor, 345 Mo. 325, 133 S. W. (2d) 336, 341. When the information required by the statute i’s-furnished'to’One injured party, it is thereby furnished td all’ and'“tothe injured'party,” without regard to their number; furnishing the ■ information required to one within the class the‘ injured party”-will'fully- satisfy the ‘statute and’ bar -a conviction’for failure to’furnish’the’ information to another within the samé class': ■' Añy other ’conclusion wouldresult’ in there being ’as many ■offeiisés Committed by the'One'act Of leaving -without stopping and furnishing the information' ’required 'as there ‘Were persons- injured and not individually -furnished’-the ’information, that’ is, where the information was not furnished to a police officer or any Of the others mentioned in the statute. Such was not the intent of the lawmakers as= evidenced by ■ other’ provisions of the statute.' ’ We hold that the -information'required-néed’’ only be ’furnished "once to one' of those mentioned in the statute and only One offense was' charged in the information: "Where a single’ offense'is charged in different ways in separate counts to meet the form the proof may take a general verdict’is sufficient without any designation of the Count upon which it is rendered. State v. McDonald, 35 Mo. 539, 543; State v. Schmidt, 137 Mo. 266, 270, 38 S. W. 938; State v. Noland, 111 Mo. 473, 501, 19 S. W. 715; State v. Librach, (Mo. Sup.) 270 S. W. 284, 285; State v. Mitts, 315 Mo. 1320, 289 S. W. 935, 937; State v. Bray, (Mo. Sup.) 246 S. W. 921, 922. The verdict was responsive to the issues submitted.

" Appellant contends-that'there 'Was- no evidence" to justify' the’submission of this "cause to-the 'jury;' that no cáse'Was made on Count Two, becahse the- State’s evidence"and admissions Show compliance with’ the ’statute- by “notice'tú-Sneed and-’ to a judicial’ officer, (the coroner) and showed no knowledge by defendant of Miss Sehmieh’s presence or injury; that no case was made on Count Four, because the State’s evidence failed to show that defendant knew that Miss Sehmieh was a passenger in the taxicab or that she was injured; that Miss Sehmieh, being only a passenger in the cab, was not a party to the accident and collision within the meaning of the statute and. .was not entitled to the information therein mentioned; and that the information given by defendant to Sneed and to the -coroner was a full compliance with the statute and no offense was shown, even if defendant had known that Miss Sehmieh was a passenger and ;was injured. .

In the course of the trial, defendant’s attorney, Mr,. Waye, made a request of.the assistant circuit attorney, as follows: “Now, Mr, Snider, in your possession is a card given you by Mr,. James J. Sneed, will yon produce that ? ’ ’ The card, which was later. admitted in. evidence, was handed to Mr. Waye by Mr. Snider and appellant now contends that “by producing the card Mr. [472] Snider admitted that it had been given to Mr. Sneed by Mr. Dougherty at the scene of this accident.” (Italics ours). There was no .express, admission in terms as to when or where or from whom Sneed may have obtained the card in Mr Snider ’s possession,, or when .Sneed, may have given the card to Mr. Snider. Nor was there any denial or contention by Mr. Snider, or by anyone, that the. card in -question had not been given by defendant to Sneed at the time and place of the accident. It was identified by defendant as the card he had there given Sneed. Absent such denial and contention the circumstances of the incident are sufficient to establish its identity and authorize its admission in evidence. There was no admission that the coroner was a judicial officer.

Defendant testified he did not see anyone in the back of the cab. Nor is. there any evidence in this record that he did. Appellant insists that the State wholly failed to prove any facts or circumstances from which knowledge on the part of defendant of Miss Sehmich’s injury might be inferred; and that no offense, as charged, was proven under either count. We think the word “knowing”, as used in the statute, means actual knowledge rather than mere constructive knowledge, or such notice as would put one on inquiry, and more than mere negligence in failing to know, or the mere presence of facts which might have induced the belief in the mind of a reasonable person. • ..

The State’s evidence was sufficient to authorize a finding that the collision happened shortly after midnight; that defendant’s automobile collided with the taxicab in the intersection with sufficient force to throw the taxicab to the other side of the street, break glass, crumple fenders and cause severe damage to the taxicab as well as to injure both driver and passenger; that a hub cap was knocked off of defendant’s automobile; that the defendant did not immediately stop,, but. drove- away from the scene at five to ten miles per. hour ■with.the hood- of .his..ear ¡up and the radiator leaking badly; and that the ear was- not stopped within 300 feet of the -scene of the collision, even-to put the: hood .down. - ' ; .

The evidence shows that Miss ¡Schmi'ch-was iihthe taxicab and-was thrown to the-floor .of the¡-taxicab-by the-force of the. collision. Her , head was. scratched and bumped, her legs were -bruised and hurt and she, thought she had. glass -in her- right eye. -It was cut.- --She got out as soon as the-cab;stopped-and a-bystander;could open-the door and help .her out. .Shé .looked’ for the gray car,- which- she had seen a moment before’the -impact. It'was-gone. - She was'out of the cab only : a few minutes., She stood by the ¡right -door Oh the south side, of the cab and then ■ got back in the! cab and' waited the arrival of the ambulance. -No:.ca-rds or.names were givehto her, other -than •the‘name of, the cáb' driver.■■■■ There-1 was 'heavy traffic through the intersection,!-a- street- ear.-was approaching, and bystanders' pushed the taxicab.-from the-street into a.-filling-station. She did not see defendant out there that evening. She didn’t see anyone1 give the driver a card while she was in the taxicab, and she “was out of the cab such a short time.’” The driver1 (Sneed) was not'out of the cab until the ambulance; -arrived. Immediately after the collision Sneed appeared to be unconscious, his head was down and he did not answer when spoken to,-,but later, he revived. He , was-not produced as a witness by either .the State or defendant'and the witnesses who were asked about him did not know where he was.

D.eféndant’s own,evidence shows that he knew that his own automobile was damaged and his wife injured in the collision.' He parked his ear and put down the hood. He walked up to the left side of the taxicab and asked the.-driver’s name ,and learned that he was hurt. Defendant said that he..-gave his card, and-license number to the cab driver-and did -not.look.in the back seat of. the cab or see. anyone there., . ... ...

. Was the State’s case-made out? The, jury were at liberty,to disregard defendant’s testimony and. to find -that defendant did not return-to,the scene of the, accident;-that he was not-seen about the taxicab; and, that his name was-not-given to, Sneed or police officers. Police officers remained at the scene until the injured parties, accompanied- by. an .officer, were--taken to .a hospital. - Even on defendant's evidence, a jury could .[4I73] :find that, he, drove away from the immediate .scene of this, near-midnight collision..

B-ut we do, .not,hold, that .the- law required one who has had an accident to stop-instantly,.-or within any-certain, number, of1 feet of the place where, the, collision occurred. .It,.may be-.impossible to instantly, stop. Circumstances-.and the necessities of the occasion may require .that, to. bp varied... ¡It..may. vary also within the range of the human factors involved. Defendant tendered instructions (d-4 and D-6) upon the theory that he “went back to the place of said accident.” We hold that the State made a case for the jury upon Count. Two1 of the information and the court did not err'in overruling the demurrer to the evidence as to Count’ Two at the close of .the whole case.

As'to Count'Four charging only an injury to Miss Sehmich and that defendant “then and there well ‘knowing 'that the said injuries had 'béen' caused to said Irene Sehmich” failed to stop and give the required information to hey or to others named in the statute, we hold the State failed'to make'a casé for the jury. We find no evidence at all in this record that defendant lpiew that. Miss. Sehmich was in the taxicab and had-been;injured.;-: The triah court therefore should'not have given'Instruction'Five/- For its action1 in overriding defendant ’s’derirurrer to "the. eyideiic^ ás to Count) F.Quf, and in giving Instruction- Five-the cause-must..be reversed and remanded. . ; . • ; . .. ...... ... .. . ....

Appellant further contends that-.the ‘court .erred iiiigiving. Instruction 4 because it failed “'tci embody ■ defendant’s defense-in the case.” It is insisted that the "required information was in fact furnished by defendant to Sneed (within -the class '“'the' .injured party”) and to Callahan,-.as,'a .'‘.judicial officer.” ; ... "/

• It is assigned as error that Instruction 4 “failed to embody ,the the defense in this case, namely., that the defendant did sfop and, that he gave Sneed his license number and address, etc., and.the,.instruct tion should have told the jury that if they found those facts, then they should acquit the defendant.” (Italics ours). • ., ■

An instruction which purports to cover the whole case and entirely ignores a defense supported by evidenop is erroneous and constitutes reversible error. State v. Gabriel, 301 Mo. 365, 256 S. W. 765, 767; State v. Busch, 342 Mo, 959, ,119 S. W. (2d) 265, 269, .Defendant’s the.ory is that the information furnished constituted .a complete. defense, and that it sh.ould have been recognized and instructed,;upon, affirmatively.

■ Mr. Callahan, the coroner of the bity.pf j3t. .L.ouis¡ was.not a judicial officer within the meaning of .the statute) (Art, V, Sec. 1, Const. Mo. 1945; State ex rel. Heimburger v. Wells, 210 Mo. 601, 610, 109, S. W. 758; State ex rel. School Dist. No. 1 v. Andrae, 216 Mo. 617, 629, 116 S. W. 561, 563; Queatham v. Modern Woodmen of America, 148 Mo. App. 33, 47, 127 S. W. 651, 654; 46 C. J. 926, Sec. 7; 42 Am. jur. 898, Public Officers, Sec. 27. Defendant’s- statement to Callanan that he had had “an .automobile .accident”, did not-meet the terms of the statute.

Did the information furnished to Sneed constitute a defense? The. statute, supra, in /part, reads.; “.. -shall leave the place of said. injury, damage .or accident , w-itbout stopping and giving tbas name, residence, including city and street number, motor vehicle, number .and chauffeur’s; or registered operator’s .number, if any, . ”

. We..construe the, wopds “.motor vehicle number”, to mean the motor vehicle .state license, number appearing. o.n .the, vehicle .operated. • :Defendant’s eyidence, ,as stated, sho-vyed-that.he stopped near the inter..section of Eastqn, ancl, Aubert,, about,3ÓQ,-feet .from the point of collision; and that immediately he. went; .to the driver of the taxicab, .learned, tb^t he eyas,injured and gave, his correct automobile license number and a card with his.name thereon showing “John.F. Dougherty, .Justice, of the Pe.ace,.Court (7th District). 2,200 St. Louis Avenue. Garfield 6301.” ,. Defendant: (formerly a Justice of. the Peace in St. Louis for ten years) had..been sheriff of the.City of St. Louis for al-.mostdwo years, and,.resided;:at-8823• Idylls Ferry Boad. He did not give .Sneed-his “residence,. ... .... and street number.” Instruction 4-closely, follmyed the above..quoted part-of the statute and re..quired,.a finding.-of non-compliance therewith. Defendant. offered numerous, instructions [.474]. authorizing a-finding of “not guilty,” ..if: defendant,gave. S,need, “the license number of his automobile .and .his, card bearing -his name;,”. if, the State failed - to prove defendant “failed to g.iye his name to'.James-J. Sneed, Jr.”;.-and unless-the State proved defendant;/'did not leaye his name and-license number •with”, Sneqd. ;.T¡he instructions'were, based upon, the theory that the .giving of the' card and license .number fully, complied with the statute as,.a matter, of .,law>>-required ;the •recognition of the affirmative defense f in .Instruction ,4-’.and 1 authorized defendant’s instructions embodying and affirmatively submitting the defense mentioned..- The . instructions,were refused.;

,.',,;The obvious purpose of-the statute.is-.to prevent-.“those controlling’ ..and. Operating .automobiles, from, concealing-their identity by -immediate.. flight? from-ithe,scene- of '• the--accident”’: Ex parte Kneedler, 243 Mo. 632, 147 S. W. 983, 984; to-obtain . . . information; . of-a.nature which will---identify -him ‘readily/’ Commonwealth v. Horsfall (Mass.) 120 N. E. 362, 364; to prevent .drivers .from-seeking--to evade prosecution by-escaping before, their ¡identity: can'.be determined, State v. Clark (S. D.) 290 N. W. 237, 239; and-“.- -.to sufficiently establish the -identity of the parties so that .they and; police-authorities may’know with •whom-.to deal--in matters growing out of the accident,’’ Runyon v. State, (Ind.) 38 N. E. (2d) 235, 237.

We-: conclude that the--information given-by defendant to Sneed, the .taxi driver, if.a jury should-find it-was given,‘was -a compliance -■with the statute.--- He gave‘hip name, the correct license number of his automobile,■--hisscity,!a-telephone- number find'other data 'from'which ? hcj or'anyone under-like circumstances,--Could-be quickly identified and-located. The -information; given--Served the basic purpose-and intent of the’ statute.- With some persons, perhaps, had some of the given information been omitted, it might 'possibly 'be- -difficult, or impossible, to locate the automobile driver in question without the giving also of the residence ‘address. But here, sufficient information was given that it was impossible to-, conceal-identity. ,For example, assume that the Mayor of New York, Missouri were in an accident and. gave his automobile license.number to. the 'other party and aljso.a card stating “John Jones, Mayor of New York, New Work, Missouri.” Should the mere fact that, before handing -his -card to the other party, he had merely failed to mark out the words “Mayor of New York” and ,write thereon, his street and house number-.convict him under this, statute ? We.-thipk not. The information given would,have identified him. What.if. a defendant in.this character of prosecution operated the New York .Garage in,. New York, Missouri, a village so small in population that it had no named, streets and‘no numbered .houses? Would,not, then, a-business card, identifying, him as proprietor,-of the New York G-arage in.New York, Missouri serve the identification,purpose of the statute? -It/would,Yet that information would not include a “street pumber.’f There is-no.particular magic in .the words “stre,et number.” as included in the statute unless: the identification of defendant be impossible, if the name of the street and theresidence, number, thereon shall -not¡ have .been, given, It seems inescapable that: defendant^ complied .with the under-' lying'purpose of the statute, .In. the instant case defendant not'only gaye sufficient identification information to Sneed, he. thereafter' vol- - untarily caused the matter to be reported .to, and then went, himself to the police station. The.information- furnished-to, Sneed, if-a,¡'jury should find.it was, furnished, was'.a defense. - The error of the trial c.ojxrt in failing to include, in-Instruction .4 the defense above noted w.as reversibly erroneous., . ■ . ■

, Other matters unlikely to occur on, retrial,- but within- the- purview of. qur rulings above, are suggested-in the brief but we believe-'that, in view of our rulings-herein,-; we need, not-extend this opinion to discuss them.

- The -judgment, appealed, from is therefore reversed and the cause is remanded for re-trial. It is so ordered.-.-

Douglas; P.J., and Ciarle, J., concur; Hyde, J., concurs, in -result but believes State made a case'for Count 4. • ■ ' - - , -• >'■■■  