People v. Skoff

The defendant was convicted by a jury of driving his automobile while he was under the influence of intoxicating liquor, contrary to the provisions of section 112 of the California Vehicle Act. Upon motion therefor, a new trial was granted. The state has appealed.

The defendant is a farmer residing near Cotati. At 9 o’clock on the evening of August 28, 1932, a collision oc

The defendant was taken by the officers to Santa Rosa. Within about one hour of the time of the accident, a doctor was called and, after examining the defendant as to his sobriety, testified that he was unable to walk a straight line; that the pupils of his eyes were dilated; that he did not articulate clearly and that he discerned “a marked odor of liquor” on his breath. The doctor said the defendant walked with his hand on his chest; that he complained of pain in the chest and arm, and that his mouth was bleeding. The doctor nevertheless pronounced him intoxicated. Both officers also testified that the defendant was intoxicated. A subsequent examination by another doctor disclosed the fact that the defendant was seriously injured as above related. At the trial, six reputable neighbors of the defendant testified they had known him many years and that he bore a good reputation as to sobriety. Two or three of them said they had never known of his drinking intoxicating liquor. The jury found him guilty of the offense with which he was charged, but recommended the imposition of a fine as penalty therefor.

During the trial the bottle of jackass brandy was admitted in evidence without tracing its possession to the defendant or his associate, except to prove that it was found in the grass near the roadside a short distance from their machine. Upon motion, the evidence of this bottle of liquor was stricken from the record and the jury was admonished to disregard it. As reasons for granting the new trial the court assigned “error in admitting in evidence the bottle of liquor and testimony regarding the same, and because the evidence in the absence thereof was not sufficient to warrant a conviction”.

Upon rehearing our attention is called to the facts that the motion for a new trial was not made on the ground of insufficiency of the evidence to support the verdict and judgment, and that the court granted the new trial on the sole ground that the admission of evidence of the bottle of brandy constituted prejudicial error, in spite of the fact that this evidence was subsequently stricken from the record and the jury admonished to disregard it.

The insufficiency of the evidence was not assigned as a ground for new trial. In his oral motion for new trial, the attorney for the defendant said: “I file the notice of intention to move for a new trial, and I make orally a motion for a new trial based v/pon it.” The actual motion for a new trial failed to designate the insufficiency of the evidence as a ground upon which the application was made. The court granted the new trial on the sole ground that “error (was committed) in admitting in evidence the bottle of liquor and testimony regarding the same, and because the evidence in the absence thereof was not sufficient to warrant a conviction”. In other words, it does appear the court granted a new trial on the sole ground that the absence of evidence regarding the bottle of brandy left an insufficiency of proof to support the judgment. It necessarily follows that if this evidence regarding the presence of the bottle of liquor near the machine where the accident occurred was competent, then the court believed there was sufficient proof to support the judgment.

The defendant waived his right to apply for a new trial on the ground of insufficiency of the evidence by failing to designate the lack of proof as a reason therefor. The court did not grant a new trial on the ground of lack of evidence, but upon the contrary it was granted for “error in admitting in evidence the bottle of liquor and testimony regarding the same”. Since the application for a new trial was not made on the ground of the insufficiency of evidence, the court lacked authority to grant it upon that ground.

A motion for new trial may be granted in a criminal case only upon the grounds specified in section 1181 of the Penal Code. (People v. Amer, 151 Cal. 303 [ 90 Pac. 698 ].)

The statute does not require the giving of a written notice of intention to move for a new trial, in a criminal ease. The application for a new trial must be orally made to the court before the entry of judgment. (Sec. 1182, Pen. Code; People v. Ah Sam,, 41 Cal. 645 , 651.) In the case

The mere filing of a written notice of motion for new trial without presenting it to the court is insufficient to comply with the requirements of the statute. (Estate of Hunter, 99 Cal. App. 191 , 196 [ 278 Pac. 485 ].) The court is without authority to grant a new trial except upon the application of the defendant. Section 1181 of the Penal Code reads in part: “When a verdict has been rendered against the defendant, the court may, upon Ms application, grant a new trial, in the following cases only: ...”

In the case of People v. Bangeneaur, 40 Cal. 613 , the court said: “The statute only authorizes the court to grant a new trial upon application of the defendant.”

In some states a trial court may grant a new trial upon its own initiative, but this is because a difference exists in the statutes with relation thereto. A reasonable construction of section 1181, supra, would imply that a defendant waives his right to a new trial upon all grounds included within the provisions of that section unless he specifies the grounds upon which he relies in his application therefor. It follows that since the defendant failed to move for a new trial on the ground of insufficiency of the evidence, the order granting the motion may not be supported on that ground.

Evidence of the presence of the bottle of jackass brandy was improperly excluded from the jury under the circumstances of this case. A collision had just occurred. The defendant’s intoxication was charged as the cause of the accident. There was substantial evidence that the odor of alcohol was upon his breath. The car was standing on the highway in a sparsely settled country district. The bottle was found in the grass within a few feet of the automobile where it was likely to have been thrown by the occupants of the machine. There appears no other reasonable way to account for the presence of the bottle at that particular time and place. In the case of State v. Gondeiro, 82 Mont. 530 [ 268 Pac. 507 ], under similar circumstances, the finding of a bottle of liquor in close proximity to the machine of an accused person was held to be competent evidence upon a charge of manslaughter. The court said:

“It is urged strenuously that the court erred in admitting testimony respecting the bottle found in proximity to the car. We are wholly unable to agree with this argument. Clearly the testimony was relevant.”

In spite of the exclusion of this evidence in the present case, the jury found the defendant guilty as charged. There appears to be sufficient evidence of the intoxication of the defendant, whether the testimony regarding the discovery of the bottle of brandy remains in or out of the case.

For the reason that the court was without authority to grant a new trial on the ground of insufficiency of' the evidence, and because we are of the opinion the evidence respecting the presence of the bottle of brandy is competent and should not have been stricken from the record, it becomes necessary to reverse the order granting the new trial. It is so ordered. The trial court is directed to vacate the order granting the new trial, and to proceed to pronounce judgment against the defendant.