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MERCER v. STATE6/24/1974
Appellant Daniel Mercer was charged with involuntary manslaughter allegedly arising from the operation of his vehicle in a willful and wanton
manner. To reverse his conviction upon a jury verdict, he relies upon the following points:
"I. The court erred in refusing to dismiss the case and in allowing the matter to be submitted to the jury.
II. The court erred in refusing the defendant's requested instruction as to acts committed by misfortune or accident.
III. The court erred in overruling the appellant's motion to suppress evidence of the chemical test of the appellant's blood."
POINT I. To sustain the action of the trial court in submitting the case to the jury the State makes the following argument:
"The testimony adduced at the trial, when viewed most favorably to appellee, reveals a 1965 Pontiac being driven by appellant was north bound on U.S. Highway No. 71. At a point approximately eight miles north of Waldron, Arkansas, appellant's vehicle crossed a well-marked center line and sideswiped the left rear wheel of a trailer towed by a tractor driven by Marcus Eoff; a tire was blown and the light lens was torn off the trailer, throwing up a cloud of smoke and dirt. Appellant's car continued around a curve and collided head-on with a vehicle driven by Bert Berkshire. The second collision occurred entirely in the Berkshire lane of traffic. Berkshire was killed by the impact and appellant Mercer suffered multiple injuries. Several beer bottles were found broken in the interior of the Mercer vehicle; a chemical test revealed Mercer was under the influence of alcohol at the time of the accident."
We cannot find in the record any evidence to sustain the State's contention that appellant "crossed a well-marked center line" before he sideswiped the trailer driven by Mars Eoff. Trooper Ira Green described the scene of the collision as occurring ". . . nine miles North of Waldron, Highway 71, at the area of the accident, the road runs generally east
and west and there was a curve to the North. . . ." The truck driver Mr. Eoff testified that he had appellant's vehicle in view a hundred yards or so before the collision with his truck. During that time he was not exactly watching appellant's vehicle but was watching the road. His direct testimony is as follows:
"Q. Alright, now did anything happen there as you met him?
A. Well, he just side-swiped the back of my trailer, blowed out a tire and knocked the light lens off of my trailer, but he didn't scratch the trailer.
Q. Well, the fellow that got killed, he was following you?
A. Yes, sir.
Q. Now did the accident occur there between Mr. Berkshire and - the man that was following you and the man that sideswiped you, the defendant Mercer?
A. Yes, sir.
Q. Was there a head-on collision?
A. Yes, sir.
Q. Was the defendant over on the wrong side of the lane of traffic?
A. Well, all I could see whenever he side-swiped me, was smoke and dirt. You see, I was around the curve, I had just straightened out on the curve and he hit the other fellow as the other fellow was coming into the curve from the north side. There was so much fog and dust and smoke there, I didn't know that he had hit the other car till I had got back about half way down there."
The statute under which appellant was charged provides:
"If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without caution and circumspection, it shall be
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