People v. McKee

This appeal is from a judgment of conviction of the defendant upon a charge of manslaughter and also a violation of section 141 of the Motor Vehicle Act (Stats. 1923, p. 517), requiring a person upon the happening of an accident to stop, give his name and address to the person struck, and render such assistance as is necessary.

The facts show that after an all-night affair at a bungalow near Seal Beach, where the defendant drank some liquor, he was driving home on Compton Avenue at Forty-seventh Street in Los Angeles City at about the hour of 6:40 A. M. on November 4, 1925; that upon arriving at the intersection he was driving a little to the left of the center of the road in an effort to pass two other automobiles in front of which Mrs. Fleming had just passed, and in so doing struck and instantly killed her. The speed of the defendant’s car was estimated by plaintiff’s witnesses at somewhere between forty and fiftfi miles an hour, by one of the defendant’s witnesses as between thirty-five and forty, concerning which fact the defendant said, “I might have been going faster than thirty-five.” A partly filled bottle of synthetic gin was found in the car and later in

[1] The first point urged by appellant is that the defendant was twice placed in jeopardy for the same offense, maintaining as the foundation for this argument that the transaction upon which the two offenses are based is but a single one. Violation of section 141 of the Motor Vehicle Act is not included within or in fact related to the offense of manslaughter. There is a sort of illicit relationship between burglary and larceny, and yet they are not so wedded that a conviction cannot be had for both, although both of them grow out of the same continuous set of acts. (People v. Devlin, 143 Cal. 128 [ 76 Pac. 900 ]; People v. Snyder, 74 Cal. App. 138 [ 239 Pac. 705 ]; People v. Case et al., 77 Cal. App. 477 [ 246 Pac. 1083 ]; and People v. Brain, 75 Cal. App. 109 [ 241 Pac. 913 ].) It cannot therefore be successfully argued that the defendant here was twice put in jeopardy. The acts constituting the second offense did not really commence until after the woman had been struck, at which time the first offense had been completed. This same circumstance is involved and considered in the connection between burglary and larceny, or robbery. (People v. Brain, supra.)

[2] The second contention advanced by the defendant is that the evidence is not sufficient to support the verdict on the second count—that of failing to stop and render all necessary aid to Mrs. Fleming after she was struck. The insufficiency, he says, consists of. this: that the evidence establishes that she was instantly killed and therefore no assistance was possible. The testimony does establish that Mrs. Fleming was dead at least by the time the bystanders reached her. We cannot admit, however, even for the purpose of argument, that there was no assistance to be rendered. Certainly decency and common respect dictate that mutilated humans should not be allowed to lie around in the street as mute evidence of the destruction wrought by

[3] Appellant next assigns as error the following instruction: “If you are satisfied to a moral certainty, and beyond a reasonable doubt that the deceased came to her death by being struck by an automobile driven upon a public highway at the time charged in this information, and that said machine was being driven in an unlawful manner, to wit, while the driver was under the influence of intoxicating liquor, or while the machine was being operated at an unlaAvful rate of speed, or while said machine was being driven upon a public highway at such a rate of speed as to endanger life, limb or property of any person, you should find the defendant guilty of manslaughter.” He says that it permitted the jury to convict “if Mrs. Fleming was killed by being struck by ‘an automobile’ driven in an unlawful manner without being required to find that defendant was the driver.” A complete answer to this is that part of another instruction requested by the defendant and given by the court wherein the jury were told that it was necessary for the prosecution to prove beyond a reasonable doubt “that the defendant, and no other person, committed the crime charged.”

[4] He also assails this instruction for its use of the words “under the influence of intoxicating liquors.” These are the AA'ords used in the act, and as so used we think they have a AA’ell-understood meaning. They are folloAved by the provision that “an habitual user of narcotic drugs shall

[5] Appellant’s next assault upon this instruction is based upon his contention that the jury "were permitted by it to find the defendant guilty, though the intoxication was not the proximate cause of the accident. The jury were told in other instructions that the gross or culpable negligence or the operation of the machine with a reckless disregard for the safety of others must be the cause of death, and instruction No. 14 stated to them that death must proximately result from such operation. Taken as a whole, we think they correctly stated the law in this particular. However, relating to this point, appellant urges that the instruction permitted the jury to disregard the contributory negligence of the deceased. They were told, and correctly so, in another instruction that it was no defense. As was said in State v. Moore, 129 Iowa, 514 [ 106 N. W. 16 ], “It is enough to say that contributory negligence, if shown, is never a defense or excuse for crime, nor can it in any degree serve to purge an act otherwise constituting a public offense of its criminal character.” (See, also, State v. Elliott, 94 N. J. L. 76 [ 110 Atl. 135 ], and cases therein cited.)

[6] Complaint is also made of this instruction because the jury were not told what constituted “an unlawful rate of speed.” The lawful rate of speed is not thirty-five miles an hour even on the country boulevard. The thirty-five miles an hour for which he contends is limited by the

[7] The defendant asserts that the instructions given by the court defining the essentials of the offense of violating section 141 of the Motor Vehicle Act is faulty in this: That they failed to state that it was necessary for the defendant to have knowledge of the striking of Mrs. Fleming. It is inconceivable that the jury could have believed that defendant struck the deceased with such force as to instantly kill her and not have known that he had struck something, unless they also believed that he was so badly intoxicated that his senses were stupefied. Under these circumstances we cannot see how the defendant was prejudiced. But the case of People v. Graves, 74 Cal. App. 415 [ 240 Pac. 1019 ], cited by appellant, is conclusive against him in this regard. In that case the court instructed the jury that “The duty imposed upon a driver of an automobile which strikes a person to stop, render assistance, and furnish the information required by the law is a duty which he must perform in all cases, and it is immaterial whether such accident was caused by the carelessness of such driver, the carelessness of the person struck, or of both, or was an unavoidable accident. Such duty arises whenever such a collision occurs.” It will be noted that the court in this case used the words “in all eases” and also says that the duty arises whenever such a collision

In a sort of an omnibus bill, the appellant urges that the refusal of the court to give a number of. instructions requested by him constitutes error. We have examined each of them with care and can find no prejudicial error. The jury was instructed as to the presumption of innocence ; given the law concerning the means to test the credibility of witnesses; told that they could not convict unless it was the defendant and no other person who struck Mrs. Fleming; the question of intent to violate section 141 of the Motor Vehicle Act has already been dealt with; what appellant calls the “general hypothesis of innocence” was covered by the court in its instructions upon innocence and reasonable doubt, which instructions covered all that was necessary against prejudice from the fact of accusation. [8] The refusal to instruct that the defendant was entitled to the individual opinion of the jurors was not prejudicial error, although this court and the supreme court have heretofore admonished the trial courts that such an instruction should be given. (People v. Singh, 20 Cal. App. 146 [ 128 Pac. 420 ], and eases therein cited.)

Judgment affirmed.

■ Works, P. J., and Craig, J., concurred.