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06/28/83 STATE MISSOURI v. ELMER FLOYD

June 28, 1983

STATE OF MISSOURI, RESPONDENT
v.
ELMER FLOYD, APPELLANT



From the Circuit Court of Andrew County; Criminal Appeal; Judge Gary A. Fenner.

Motion for Rehearing Overruled, Transfer Denied August 30, 1983. Application Denied October 18, 1983.

Before Lowenstein, P.j., Wasserstrom, Manford, JJ.

The opinion of the court was delivered by: Manford

This is a direct appeal from a jury conviction for violation of § 577.060, RSMo 1978. The judgment is reversed.

While appellant presents two points on this appeal, only one point - his challenge to the sufficiency of the evidence to sustain the conviction - is considered due to the Disposition of this matter.

On January 8, 1982 at approximately 2:00 p.m., appellant was operating his pickup truck in a northerly direction on a gravel road in rural Andrew County, Missouri. After he crossed over a one-lane bridge, he came upon a pickup truck owned by one Donald Durham parked in the middle of the road some eight to ten feet from the end of the bridge. Durham was out of his vehicle talking with some area residents. The weather was clear, but there was snow on the ground and the road was slick. The left-hand door of the Durham pickup was open, making it impossible for any other vehicle to pass or proceed on the narrow road. Appellant's pickup struck the rear end of the Durham pickup. The Durham pickup sustained damage to the rear portion and transmission, but the collision produced no personal injuries.

Appellant stopped his pickup on impact. Appellant and Durham conducted a conversation for about five minutes. The evidence revealed that Durham had known appellant and had known where he lived, all of his life. Following the conversation, appellant drove home. Some two and one-half hours following the collision, appellant reported the collision to the local sheriff. During the period between the collision and appellant's report, officers from the Sheriff's office tried unsuccessfully to contact appellant at his home. Appellant testified that he was at home, but did not hear the officers at his door. There was evidence that appellant and his granddaughter were both ill with the flu. At the time of the collision, appellant was enroute home with medicine for his granddaughter. Due to his illness, appellant was suffering from diarrhea. Appellant was later arrested and prosecuted for leaving the scene of an accident pursuant to § 577.060, RSMo 1978.

Under the above facts, this court is asked to affirm the Class D felony conviction of appellant. There is not a great deal of case authority in this area of the law, but this court feels that this case is squarely disposed of by our state Supreme Court in State v. Dougherty, 216 S.W.2d 467 (Mo. 1949). In Dougherty, the court considered § 8401(f), RSMo 1939, the predecessor statute to § 577.060, RSMo 1978. The prior statute and the present statute are worded almost identically and it can be readily observed that the legislative intent within both is identical. § 577.060 reads as follows:

"577.060. Leaving the scene of a motor vehicle accident

1. A person commits the crime of leaving the scene of a motor vehicle accident when being the operator or driver of a vehicle on the highway and knowing that an injury has been caused to a person or damage has been caused to property, due to his culpability or to accident, he leaves the place of the injury, damage or accident without stopping and giving his name, residence, including city and street number, motor vehicle number and chauffeur's or registered operator's number, if any, to the injured party or to a police officer, or if no police officer is in the vicinity, then to the nearest police station or judicial officer.

2. Leaving the scene of a motor vehicle accident is a class D felony."

In Dougherty, our state Supreme Court noted that this statute is penal in nature and must be strictly construed against the state. The court also noted that there might be such various human factors or physical surroundings that the immediate stopping following a collision would not be possible and certainly no predetermination of distance could be prescribed, but that each case has to be reviewed in light of its own facts and circumstances.

The real import of the Dougherty decision is that the court recognized and declared the purpose of the statute. At 474, the court stated:

The obvious purpose of the statute is to prevent 'those controlling and operating automobiles from concealing their identity by immediate flight from the scene of accident,' Ex parte Kneedler, 243 Mo. 632, 147 S.W. 983, 984, 40 L.R.A., N.S., 622, Ann.Cas. 1913C, 923; ' * * * to obtain * * * information * * * of a nature which will identify him readily,' Commonwealth v. Horsfall, 213 Mass. 232, 100 N.E. 362, 364, Ann.Cas.1914A, 682; ' * * * to prevent drivers from seeking to evade prosecution by escaping before their identity can be determined', State v. Clark, 67 S.D. 133, 290 N.W. 237, 239; and ' * * * to sufficiently establish the identity of ...


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