Opinion
Rehearing Denied Nov. 5, 1930
Hearing Granted by Supreme Court Nov. 20, 1930.
Appeal from Superior Court, Los Angeles County; William T. Aggeler, Judge.
W.R. McIntire was convicted of second degree murder and driving a motor vehicle while under the influence of liquor and of failure to stop and render aid after accident, and he appeals.
Judgment as to conviction of murder in the second degree modified, and otherwise reversed.
COUNSEL
Paul Taylor, of Los Angeles, for appellant.
U.S. Webb, Atty. Gen., and Ralph O. Marron, Deputy Atty. Gen., for the People.
OPINION
SCHMIDT, Justice pro tem.
Appellant, William R. McIntire, in the lower court was convicted under count 1 of the information with the crime of second degree murder, under count 2 of driving a motor vehicle while under the influence of intoxicating liquor in violation of section 112, California Vehicle Act (as amended, Stats.1929, p. 537, § 44), and under count 3 of failure to stop and render aid, etc., in violation of section 141, California Vehicle Act (as amended, Stats.1929, p. 544, § 62).
On January 1, 1930, at the intersection of Atlantic boulevard and Hubbard streets in the county of Los Angeles, one Mrs. Margaret Towers, while crossing in a pedestrian lane, was injured by being struck by an automobile, resulting in injuries that caused her death. In connection with this unfortunate accident, appellant was charged in the lower court with the various offenses set forth. This appeal is from the judgment upon the verdicts and from the order of the court denying appellant’s motion for a new trial.
Appellant claims error was committed by the trial court in compelling the witness Ruby Burroughs to testify after she claimed she was the wife of appellant.
Between the time of the preliminary hearing and the trial it appears that a purported marriage ceremony was performed; the parties thereto being said witness Ruby Burroughs and appellant. To a great extent this appeal rests upon the admissibility of her testimony— in fact, her testimony was more important than that of all other witnesses combined, to prove who drove the car, as well as other facts.
The contention is made that the court had no power to permit a collateral attack upon the purported marriage once it had been established that a marriage ceremony had been performed. But the attack here made was not collateral. It was the duty of the trial court, and it had jurisdiction, to determine as a fact whether or not the witness was the wife of appellant.
The trial court, after taking testimony, held that the purported marriage having been attempted to be performed under section 79 of the Civil Code, was void, in that the evidence did not show that appellant and said Ruby Burroughs had "been living together as man and wife." There being a conflict in the evidence on this question, we cannot disturb the conclusion reached by the trial court. There was therefore no error committed in compelling Ruby Burroughs to testify.
Error is further assigned in the refusal of the court, upon request of the appellant, to excuse the jury while the lengthy arguments as to the admissibility of the testimony of Ruby Burroughs and the evidence taken pro and con upon this question was being heard. It is well settled that it is within the discretion of the trial court whether or not to excuse the jury pending argument as to the admissibility of evidence. All presumptions are that the court acted with discretion. Appellant has failed to show any prejudice in this regard.
The final point made is insufficiency of the evidence to sustain the verdict of guilty as to each count in the information. For convenience we will consider the counts in their reverse order.
Count 3 was worded substantially in the language of section 141, California Vehicle Act, as amended in 1929 (Stats.1929, p. 544, § 62), which section, in so far as this case is concerned, reads:
"(a) The driver of any vehicle involved in an accident resulting in injury or death to any person shall immediately stop such vehicle at the scene of such accident and shall fulfill the requirements of subdivision (c) and any person failing to stop or to comply with said requirements under such circumstances shall be guilty of a felony," etc.
"(c) The driver of any vehicle involved in any accident resulting in injury or death to any person *** shall also give his name, address and the registration number of his vehicle and exhibit his operator’s or chauffeur’s license to the person struck *** and shall render to any person injured in such accident reasonable assistance," etc.
Under this section a defendant may be convicted of a failure to do any one of the several required things when his automobile collides with a pedestrian, namely, (1) to stop immediately; or (2) give his name and address; or (3) registration number of his vehicle; or (4) exhibit his operator’s or chauffeur’s license to the person struck; or (5) to render necessary assistance. People v. Scofield, 203 Cal. 703, page 710, 265 P. 914.
Substantially all the testimony, including that of the said Ruby Burroughs, was that appellant drove the automobile that caused the death of Mrs. Towers; that he stopped about 100 feet from the accident and went about half way to where Mrs. Towers was lying in the street; was accosted by the witness David T. Williams, who stated to appellant, "You have killed that lady," whereupon appellant returned to his car and drove away.
Miss Gladys M. Gould, granddaughter of Mrs. Towers, testified that at the time of the accident she "crossed over to where her grandmother was and saw her laying there; quite a few people gathered just a few minutes after it happened; my mother took my grandmother’s head I think, and tried to hold it on her arm but they (the people around there) would not let us touch her."
Immediately following the accident many automobiles and persons gathered at the scene of the accident. Although there is no direct testimony that Mrs. Towers was rendered unconscious, nevertheless it is a very reasonable inference from all the testimony concerning her injuries and her condition that she was not able to talk or understand what was going on.
As to stopping immediately, this appellant did. With reference to the data in subdivisions 2, 3, and 4, the statute requires same to be given to the person struck. If the collision is with another vehicle, which is not the case here, the statute requires that the information shall be given to "the driver or any occupant of any vehicle collided with." It must be borne in mind that the charge in the information related exclusively to said Margaret Towers.
In People v. Scofield, 203 Cal. 703, it was said, at page 708, 265 P. 914, 916: "It was possible for the defendant to have placed on the person of Gilliam" (who was rendered unconscious) "the specified information" (called for by section 141, California Vehicle Act), "but the law would seem to contemplate that such information be given to some one consciously able to receive it. This interpretation of the statute does not, as has been suggested, render it possible for a reckless driver to escape punishment by being sure that he renders his victim unconscious and then proceed on his way. There is still the obligation to stop and render the necessary assistance to the injured party. In this connection it must be noted that the statute requires that necessary assistance be rendered. Under the facts in this case, the deceased was given all the assistance that could be required without the aid of the defendant. It is suggested that the defendant might have interjected his person into the midst of the several individuals who were caring for the deceased and insisted upon his own ministrations. This, we think, he was not required to do under the circumstances here shown. In other words, his assistance was not necessary. To have forced himself into the company of those who were rendering aid might have been an impertinence and not at all justifiable. A failure to do so should not subject the defendant to criminal responsibility under the statute." This language applies with equal force to the case at bar, in which the facts were almost identical. It necessarily follows that the evidence is insufficient to sustain the verdict of guilty under count 3.
II. Count 2 charged appellant with violation of section 112, California Vehicle Act, namely, driving an automobile along and upon a public highway while under the influence of intoxicating liquor. The testimony shows that the accident occurred at about 6:30 to 7 p.m. in the evening. Ruby Burroughs testified that she had seen appellant taking a drink or two in his office early in the afternoon; "I seen him take it out of the bottle, I don’t know how much he drank; " that she could not tell whether the bottle contained alcoholic liquor by merely looking at it; that she was not sufficiently familiar with intoxicating liquors to be able to distinguish between various kinds of liquor; that after the accident appellant drove the car from the scene of the accident several miles to the city of Burbank, where some one (the record does not disclose whom) stopped them and asked if they had been drinking, and, receiving an answer in the affirmative, suggested they have some one else drive the car; that thereupon said Ruby Burroughs drove the car for a short distance, but, not being familiar with the driving of cars, appellant again drove the final few blocks to their destination, the Simmons home; that appellant was not under the influence of liquor. Another witness, Sam Maz, testified that right around 6 o’clock appellant drank one glass of light wine containing about six ounces which the witness gave appellant; that it contained not to exceed 3 per cent. of alcoholic content. Another witness, Mrs. Simmons, testified that upon returning to her home about two hours after the accident she found the defendant at her home, and in her opinion he was drunk, and, when asked as to the degree of drunkenness, replied: "He" (appellant) "was still able to stand but he was in a stupor; he was not able to hold any conversation." This, in substance, is all the testimony on this count.
The question is, Was the defendant under the influence of intoxicating liquor within the meaning of the statute? We have here evidence that prior to the accident appellant had had some intoxicating liquor. However, there is an utter lack of any evidence that the liquor had "so far affected the nervous system, brain, or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions," as the rule was laid down in People v. Ekstromer, 71 Cal.App. 239, at page 246, 235 P. 69, 71, or facts from which the jury could so infer. It is a well-known fact that some people can and do take several drinks without being substantially affected thereby, while others are affected by the mere taking of one drink. It is likewise a well-known fact that with many people the effect resulting from drinking alcoholic liquors is not produced until some time after taking, while with others the effect is almost immediate. There is no substantial evidence upon which it could be legally found that at the time of the accident appellant was driving his car while under the influence of intoxicating liquor. The evidence in this case only creates a conjecture or suspicion that at the time of the accident appellant was under the influence of intoxicating liquor. A conviction is not justified upon mere conjecture or suspicion. The situation in this case is quite similar to a civil action in which a collision is proved, but not any negligence. It necessarily follows that the evidence is wholly insufficient to sustain a conviction under count 2.
III. We come now to consider count 1, under which appellant was found guilty of murder in the second degree. The theory of murder arises from a death resulting in the commission of a felony, in this case, resulting from driving an automobile in violation of section 112, California Vehicle Act. Having heretofore held that the evidence is insufficient to sustain the conviction under count 2, namely, violation of section 112 California Vehicle Act, the conviction of murder in the second degree cannot stand. We are, however, satisfied that the facts of the case show and justified the verdict of the jury in so far as it held appellant responsible for the death of Mrs. Towers. We are equally satisfied that the verdict of guilty should not have been greater than manslaughter.
Section 1181, Penal Code, as amended in 1927 (St.1927, p. 1037), provides that, if the evidence in criminal cases shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof or of a lesser crime included therein, the trial court may modify the judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed.
This section received interpretation from the Supreme Court in People v. Kelley, 208 Cal. 387, 281 P. 609, and, applying the construction given section 1181, Penal Code, in that case to count 1 in this case, the same order as made in the Kelley Case should be made here.
As to count 1, the judgment of the lower court of murder in the second degree is modified. The cause is remanded to the trial court, with directions to enter a judgment against appellant finding him guilty of manslaughter, and thereupon to pronounce judgment upon him as prescribed by law. As to count 2, the judgment of conviction and order denying a new trial are reversed; and as to count 3 the judgment of conviction and order denying a new trial are reversed.
We concur: WORKS, P.J.; CRAIG, J.