People v. Knox

In this ease appellant was charged by information with the commission of two felonies. In Count I he was charged with a “Violation of subsection 3 of section 192 of the Penal Code of the State of California, Manslaughter,” in that on or about November 9, 1957, he “did unlawfully kill, without malice, one Rae Southerland while in the operation of a vehicle, and with gross negligence.” In Count II he was charged with a violation of section 501 of the Vehicle Code in that on the same occasion he ‘1 did drive a vehicle while under the influence of intoxicating liquor and in so driving did an act forbidden by law, which act proximately caused bodily injuries to other persons. ’ ’

On his pleas of not guilty as to both counts he was tried to a jury which returned a verdict finding him guilty of violation of section 192 of the Penal Code, the jury, however, finding that the act causing death was done without gross negligence. The jury also returned a verdict finding him guilty of a violation of section 502 of the Vehicle Code, a lesser offense included in the charge of a violation of section 501. The court later granted a new trial as to Count II (Veh. Code, § 501), and denied a new trial as to Count I. On his application, the court granted appellant probation, fixing the term at three years, and requiring as a condition thereof that he be imprisoned in the Placer County jail for six months. He has appealed. He was granted release on bail pending appeal.

Appellant contends: (1) that the court committed error in admitting testimony concerning the alcoholic content of his blood at the time of the accident and that the error was not cured by the court’s later striking that evidence out and admonishing the jury to disregard it; and (2) that the district attorney was guilty of misconduct in offering the evidence concerning alcoholic content of appellant’s blood, knowing as he did so that it was not admissible under the circumstances and knowing that it would be stricken upon motion, but intending, nevertheless, to get the advantage of having first obtained the receipt of that testimony to appellant’s prejudice. Appellant also contends that the court erred in denying his motion for a new trial as to said Count I, and, finally, appellant contends that the evidence does not support the verdict.

In the early morning of November 9, 1957, while driving his automobile on Highway 40 between Sacramento and Au

Appellant testified that about a mile and a half south of the point of collision he passed a truck; that he was then traveling 60 to 65 miles an hour, but accelerated his speed while passing to about 75 miles per hour; that having attained his own lane again after passing he slowed down to 55 to 60 miles an hour; that he noticed something ahead which appeared to be stationary in the road; that he applied his brakes and veered to the left, trying to avoid hitting the object; that the object had no lights on its rear; that the object was the Dominguez car, with which he collided.

Dominguez testified that at the time of the accident he was driving north at a speed of 35 to 45 miles per hour; that although he saw nothing coming up behind him he heard the screeching of brakes and his car was struck and turned over.

A Doctor Bailey was called to the scene of the accident. He testified he observed appellant sitting in his car in a dazed or stuporous condition, with an abrasion on the bridge of his nose and abrasions on one of his knees; that he noticed a strong odor of alcohol on appellant’s breath and was of the opinion that he was under the influence of alcohol because of this strong odor, and because, though not seriously injured, he was stuporous and, in the opinion of the physician, did not react appropriately to the situation.

After proof of death, the next chronological step in the receipt of testimony was the swearing as a witness of

At this point Doctor Craig, who had taken the blood sample, was called by the People. He testified that he examined appellant while he was in the hallway of the hospital lying upon a gurney and that he found no serious injuries; that thereafter a blood alcohol sample for examination was requested and he had drawn a sample of blood. He was asked if he had a conversation with appellant and replied that he had not had what he could call a real conversation; that appellant was not talking; that appellant just told him (the doctor) to get away from there. “Q. What words did he use to express, as best you can recall, the exact words of the conversation ? A. I

Touching the happening of the accident there was testimony that appellant’s car had laid down skid marks slightly over 300 feet long which were in his proper travel lane for about 200 or more feet, and which then veered toward the opposite lane to the point of collision. Appellant testified that he was not under the influence of alcohol while driving just prior to the collision although before he started his drive, and over a course of several hours, he had imbibed five or six drinks containing vodka.

Considerable testimony was received concerning whether or not there were rear lights on the Dominguez car. There was testimony that Dominguez had inspected his rear lights before leaving San Francisco for Reno and found them working; that he had stopped at a service station shortly before the collision and that the station attendant observed his rear lights were burning.

After the blood sample, its analysis and the expert testimony based thereon had been admitted as hereinbefore related, it appeared that the officer who arrested appellant had requested the blood sample be taken because from what he had observed and had been told he was in doubt as to whether or not appellant was under the influence of alcohol at the time of the collision, and that he had formed no opinion as to the intoxication of appellant. It appeared also that it was not until after he received the blood analysis that he had arrested appellant and that the arrest occurred nine days after the blood sample was taken.

Considering appellant’s contention that the evidence was insufficient to sustain a conviction of violation of sub

We will now discuss the claims of error. When the admissibility of the blood sample, the analysis of the sample, and expert testimony concerning the effect upon a driver of an alcoholic blood content of .17 was first approached through the questions asked of the nurse, the trial court adopted proper procedure in granting voir dire examination before ruling on the admissibility of her testimony as to the taking of the blood sample. The Supreme Court, in People v. Gorg, 45 Cal.2d 776 , 780 [ 291 P.2d 469 ], said:

“. . . The procedure adopted by the trial court was proper, for the admissibility of the evidence presented a question of law for the court. (Code Civ. Proc., §2102; Steele v. United States, 267 U.S. 505 , 511 [ 45 S.Ct. 417 , 69 L.Ed. 761 ]; Boyer v. United States, 92 F.2d 857 , 858; Marsh v. United States, 29 F.2d 172 , 173; United States v. Jankowski, 28 F.2d

The trial court must often determine issues such as here raised by receiving voir dire evidence. The evidence may prove to be conflicting, in which case the court must resolve the conflict. Upon this subject and upon the power of an appellate court to set aside the trial court’s determination, we quote the following from Marsh v. United States, cited by the Supreme Court in People v. Gorg, supra, the opinion being written by Circuit Judge L. Hand:

“First, however, we must decide whether the search at bar was reasonable, .... We are therefore first to determine whether the trooper overhauled the car for violation of a traffic ordinance. Upon that issue we see no reason to disturb the finding of the District Judge, who alone was charged, as we held in United States v. Jankowski, with the duty of deciding the facts on which the competency of the evidence depended. At the same time we must confess to considerable doubt whether, had the matter been before us in the first instance, we should have come to the same conclusion. The circumstances made the trooper’s story somewhat doubtful, and an easy complaisance in any plausible tale may deprive defendants of their constitutional rights. This caution we are not, however, ourselves in a position to exercise, because, except in plain cases, we cannot tell from the cold record where the truth lies. For the future we take this occasion to press upon the District Judges that they search the testimony in such eases with care, remembering that the protection of defendants must in most eases rest finally with them.”

It is disclosed by the evidence, which we have hereinbefore stated in considerable detail, that during the examination of the nurse on voir dire the question before the court was whether or not the blood sample had been taken with the consent of appellant. Of course, if it had been then appellant could not validly object to the use of the blood analysis in evidence or to the expert testimony as to the effect upon a driver of so much alcohol in his blood. By overruling the objection to the admission of her testimony the trial court impliedly ruled that, upon the evidence before him at that time, the blood sample had been taken with appellant’s consent. Although during the argument, after the voir dire examination of the nurse had been concluded on both sides, counsel

When it later developed that, had consent to the taking of the blood sample not been given, there was a question as to whether or not the taking could be justified on the basis of a lawful arrest to which the taking was incidental the court received considerable testimony touching those matters, and eventually ruled that the taking had not been incidental to arrest because the arrest had been delayed for some nine days and until the arresting officer had received the analysis of the blood. Upon motion of counsel for the defense the court ordered stricken all of the testimony touching the taking of the blood sample, the analysis of the blood, and the testimony of the expert as to the effect upon appellant’s driving ability of the alcoholic content found to have been in his blood, and admonished the jury that they were to disregard all of that testimony.

Although as we have said the trial court properly admitted the testimony, later stricken, because such admission was proper upon the record as it stood when the order of ad

Appellant argues that even if the officer might have validly arrested appellant prior to the taking of a sample of his blood and might then have taken the blood without consent of the appellant so long as it was done in a reasonable and medically-approved fashion, and although the taking of the sample might precede the arrest (see People v. Duroncelay, supra), still the lapse of nine days between the taking of the sample and the making of the arrest was so great that the arrest when actually made could not be related back to the taking of the sample; that to admit the evidence concerning the contents of appellant’s blood offended against the constitutional right to be secure from unreasonable searches and seizures.

State v. Kroening, 274 Wis. 266 [ 79 N.W.2d 810 ], relied

“In the case at bar the defendant was not under arrest when his blood was taken nor was he arrested for more than a week afterward. Wisconsin subscribes to the federal rule that evidence obtained by illegal search and seizure is inadmissible upon the trial. [Citing cases.] If, then, the means by which the state came into possession of defendant’s blood constituted a search and seizure, not incident to his arrest, it must follow that it was an illegal one, therefore unreasonable, and testimony regarding analysis of the blood was inadmissible.

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“The State submits that where probable cause exists to arrest the driver without warrant, the fact that the search preceded the arrest is immaterial and does not prevent the search from being incident to the arrest. The statement of facts in the report of the learned trial court hardly warrants the assumption that there was probable cause to arrest Kroening without warrant, but we pass that and observe only that he was not arrested until nine days after the accident. If we were to indulge in speculation, it would seem most likely that it was the result of the blood analysis rather than anything else which supplied the probable cause. While the attorney general correctly says that a search and seizure which is incidental to a lawful arrest does not violate the constitutional rights of the person searched, the lapse of time between the search and the arrest is important and in some cases, as this, vital in determining whether the search is incident to the arrest. . . . The time interval in the instant case, in the absence of any enlightenment contained in the facts reported by the trial court, is far too long for us to accept the State’s suggestion that this search and seizure was incident to the arrest of defendant.”

But here we have this situation: The trial court could properly conclude, as it impliedly did that, in view of the additional evidence taken after it had first admitted evidence of the alcoholic content of appellant’s blood, the sample had been taken without his consent; that the admissibility of the evidence had to depend in the last analysis upon the taking having been incidental to a lawful arrest; and that in view of

Appellant contends strongly that the court, having finally determined that the evidence ought not to have been admitted and that it was properly subject to a motion to strike, committed error when it refused appellant’s motion for a mistrial and likewise committed error when it refused appellant’s motion for new trial. Appellant argues that the effect of the testimony concerning the taking of the blood sample, the analysis thereof, and the testimony of the expert explanatory of the effect of so much alcohol in the blood was so damaging to his side of the case that he was unfairly tried; that the admonition of the court could not make the trial fair. Appellant cites a number of cases holding that the damaging effect of such testimony cannot be substantially lessened by an admonition. (See People v. Tarantino, 45 Cal.2d 590 [ 290 P.2d 505 ]; People v. Carswell, 149 Cal.App.2d 395 [ 308 P.2d 852 ]; People v. Orcalles, 32 Cal.2d 562 [ 197 P.2d 26 ]; People v. Hardy, 33 Cal.2d 52 [ 198 P.2d 865 ]; People v. Wochnick, 98 Cal.App.2d 124 [ 219 P.2d 70 ]; People v. Bentley, 131 Cal. App.2d 687 [ 281 P.2d 1 ].) On this subject we quote from People v. Hardy, supra, at page 61:

"... Under ordinary circumstances the trial court is permitted to correct an error in admitting improper evidence by ordering it stricken from the record and admonishing the jury to disregard it, and the jury is presumed to obey the instruction. (People v. Prather, 134 Cal. 436 , 439 [ 66 P. 589 , 863]; People v. Sourisseau, 62 Cal.App.2d 917 , 929 [ 145 P.2d 916 ].) However, as was stated in People v. McKelvey, 85 Cal.App. 769 , at page 771 [ 260 P. 397 ], ‘It has also been held that in certain cases where the incompetent evidence goes to the main issue and where the proof of defendant’s guilt is not. clear and convincing, that the error in admitting the incompetent evidence cannot be cured by striking out and instructing the jury to disregard that evidence. ’ ’ ’

We have come to the conclusion, in view of all of the circumstances shown by the record that the situation is one where the court could and did cure the wrong by striking out the improper evidence and admonishing the jury to disregard it. Appellant was convicted of manslaughter, the unlawful killing of a human being without malice, in the commission of an unlawful act not amounting to felony. His being under the influence of alcohol at the time, while not essential to his guilt, was most persuasive evidence. But appellant’s condition as to sobriety was not proved by the blood analysis alone. There was much other evidence on the point. Two doctors gave it as their opinion that he was under the influence of alcohol. They were qualified experts and trained observers. Appellant’s own testimony was that over some period of time he had imbibed five or six drinks containing vodka before he began to drive.

Turning now to evidence of guilt aside from appellant’s sobriety, we find strong support for the verdict. The way in which the accident happened was amply sufficient we think to convince the jury that appellant was guilty of manslaughter. It is difficult to see how a man driving as fast as he must have been driving in the dark of the night could collide with such force with a car moving ahead of him on the highway without himself having been guilty of negligence. We think this to be a case where the admission of the improper evidence did not deny to appellant a fair trial.

There is no merit in appellant’s contention as to misconduct of the prosecuting attorney. The admissibility of the evidence as to the amount of alcohol in appellant’s blood was a matter of such uncertainty that it was proper for the prosecutor to submit the issue to the court.

Peek, J., and Schottky, J., concurred.

A petition for a rehearing was denied March 29, 1960, and appellant’s petition for a hearing by the Supreme Court was denied April 26, 1960.