People v. Halbert

The defendant was found guilty under counts 1 and 3 of the information. Count 2. charged the offense of violation of section 112 of the California Vehicle Act. But at the trial count two was dismissed.

American Avenue is a street running north and south, in the city of Long Beach. State Street is an east and west highway which crosses American Avenue and is thirty-six feet wide between curbs. Extending along the center of American Avenue is a right of way, seventy-two feet in width, of the Pacific Electric Railway. Between the west line of the right of way and the west curb line of the avenue, the width of the driveway is thirty-one feet. On the east side of the right of way the width of the driveway is twenty-six feet. State Street is open for traffic across American Avenue.

At about 1 o’clock on the night of March 29, 1925, one Frank Jones was driving a Ford roadster, going south on the west side of American Avenue. At about the same time

The manslaughter charge is contained in count one of the information. As shown by the evidence, the crime committed was involuntary manslaughter. This crime is the unlawful killing of a human being, without malice, when done “in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” (Pen. Code, sec. 192.)

[1] The foregoing statement of facts shows that the evidence was sufficient to prove that the driver of the Ford coupe was guilty of involuntary manslaughter. The only additional fact necessary to sustain the conviction would be the fact that the defendant was the driver of the Ford coupe. The corpus delicti having been established by evidence apart from any admission or confession made by defendant, there remains no doubt that the fact that the defendant was the driver of the offending machine may be established by admission made by him of that fact. (People v. Moran, 144 Cal. 48 , 53 [ 77 Pac. 777 ].) The record contains testimony showing admissions made by the defendant to the effect that he was the driver of his car at the time of the collision. We will consider later appellant’s further con

[3] Count III of the information, under which also the defendant was convicted, is the crime of violation of section 141 of the California Vehicle Act. (Stats. 1923, p. 517; Deering’s Gen. Laws, 1923 ed., Act. 5128.) That section reads as follows: “Duty to stop in case of accident. Penalty. The driver of any vehicle which strikes any person or collides with any other vehicle shall immediately stop and give his name and address and the names and addresses of all passengers not exceeding five in his vehicle, also the registration number of his vehicle, to the person struck or the occupants of the vehicle collided with, and shall also render to such persons all necessary assistance, including the carrying of such persons to a physician or surgeon for medical or surgical treatment, if such treatment is required or if such carrying is requested by the person struck or any occupant of such vehicle collided with. Any person violating any of the provisions of this section is punishable by imprisonment in the state prison not exceeding five years or in the county jail not exceeding one year, or by a fine not exceeding five thousand dollars, or by both such fine and imprisonment.” The evidence in the present record shows that defendant’s vehicle collided with the vehicle then being driven by Jones; that the defendant’s ear stopped momentarily only and then proceeded on its way; and that no occupant of defendant’s car rendered necessary assistance or any assistance to the injured person, although that person was manifestly in a condition requiring immediate aid.

Appellant claims that there was a variance between count III of the information and the proof, in that the information charged that the automobile driven by the defendant “did then and there collide with and strike a human being, to-wit, Frank Jones,” etc., whereas the evidence is limited to

[4] It follows also that the corpus delicti, consisting of a crime committed by the driver of appellant’s automobile, was established by competent evidence exclusive of any confession or admission made by the defendant. We thus arrive at the conclusion, applicable to the third count as well as to the first count of the information, that there is no merit in appellant’s contention (based upon the claimed absence of competent proof of the corpus delicti), that the court erred in receiving evidence of his admission that he was in fact the driver of his automobile at the time of the collision.

Appellant contends that the court erred in sustaining objections .to questions propounded by him to a witness by whom appellant was seeking to show certain physical conditions on the ground and consequent physical impossibilities (as appellant’s counsel claimed), in disparagement and contradiction of testimony introduced by the state. Alfred D. Mitchell was the witness. He stated that he was familiar with the location of the driveways at the intersection of

Appellant’s attorney was proceeding to ask further questions apparently of similar import when the court said, “I will be consistent in my rulings, so there is no use of pursuing it any further. You have got your record.” We presume that the purpose of these questions was that indicated by counsel for appellant as hereinbefore stated. Eye-witnesses of the collision which occurred on the night of March 29, 1925, had testified that at the moment of the collision they were present at certain points, which were substantially identical with the positions assumed for Mr. Mitchell in the questions propounded to him. This may be illustrated by the testimony of Mrs. Elkins. She testified that immediately preceding the collision between the two automobiles she and her husband were driving northward on the east driveway of American Avenue just south of State Street; that she saw a Ford roadster hit in the rear by a Ford coupe. Definitely and in detail she described the collision and the results of the collision as plainly seen by her. She located the position

Appellant contends that it was the duty of the court to allow him to introduce the aforesaid offered evidence of Mitchell in order to assist the jury in determining whether or not it was a physical possibility for any person, under any atmospheric conditions, from the said several points of view, to fix with any degree of certainty the center line of State Street across its intersection with American Avenue, so as to be able to testify to the position of appellant’s automobile with respect to the center line of State Street while his automobile was traveling west at said street intersection.

In People v. Hadley, 175 Cal. 118 [ 165 Pac. 442 ], the defendant was convicted of murder committed at night while burglarizing the house of the deceased. Mrs. Young, a neighbor who heard the shots, went to her window and saw a colored man, whom she identified as the defendant, “sneaking along in front of the house of the deceased,” and then climbing over a fence. The defendant offered the testimony of a witness for the purpose of showing that under the conditions existing at the time of the homicide, Mrs. Young could not have identified the defendant. The court sustained a number of objections to the questions asked of this witness, which questions apparently were for the purpose of showing the conditions existing when the witness made his observation, so that the same might be considered in comparison with the conditions existing at the time to which Mrs. Young referred in her testimony. The district attorney was insisting that' before the impeaching evidence could be received, precisely similar conditions (including equality of eyesight), must be established for the purposes of the experiment. Referring to this, the supreme court said: “The court did not rule upon this statement, but it is quite apparent that the prosecuting attorney believed that unless the ‘experiment’ touching the ability of one person to recognize another was carried out under identical conditions, even to the last leaf on the tree, with those which obtained when the witness Mrs. Young testified that she identified the defendant, the evidence was inadmissible. Of course such is not the law. Nor did the court rule that such was the law. ” [5] In order that experimental evidence

[8] Under point V of Ms brief appellant claims that the court erred in sustaining objections to questions propounded by him to the witness Holland for the purpose of showing that Holland had made at other times statements inconsistent with Ms present testimony. Appellant claims that he had a right to introduce tMs evidence because he was surprised and prejudiced by the unexpected answers of the witness, which were different from testimony given by him at the preliminary examination of the charge against appellant. The testimony of Holland at this time was offered in relation to a subordinate issue, which was, the right of the prosecution to, introduce in evidence the testimony of the witness Iseminger concerning statements made by appellant at the place where he was arrested at or near the place where his Ford coupe was found shortly after the accident. Iseminger testified that when he and Officer Holland arrived at the scene of the accident at American Avenue and State Street a few minutes after that accident had occurred, he and Holland had been given the number of the Ford coupe which had disap

After the conclusion of the evidence received concerning the foundation for introduction of said statement, Iseminger was permitted to testify to the statement which he said was made by appellant. In substance his answer was that when he and Holland found appellant near the said Ford coupe, appellant said that one of the caps found in the car was his own. “I asked him where the other fellow was and he said there was no one with him and I said, ‘Yes, there was some other people in the car with you, wasn’t there?’ And he said, ‘No, there was no one with me.’ I said, ‘Who does this other cap belong to?’ He said his brother was with him then, and I asked him where his brother went to, where his brother was, and he said he didn’t know, and I believe that was about all the conversation at that time. ’ ’

Turning now to the matter of the court’s ruling, which is the subject of appellant’s complaint at this time, we find that counsel for appellant asked Holland, “Q. And isn’t it a fact that he wouldn’t say anything, so you handcuffed him to the front wheel of the car?” The witness having answered in the negative, appellant then sought to introduce testimony given by Holland at the preliminary examination, which reads as follows: “A. Well, I went—my partner was there, Mr. Iseminger, he came there when I was bringing him back down Twentieth street, and I turned him over to him and right there we both questioned him. He would not say anything, so we handcuffed him to the front

Prom the foregoing it appears that, even according to the testimony so given by Holland at the preliminary examination, no part of the alleged statement was obtained from the defendant at or after the time when he was handcuffed. Thus far we have assumed that the statements made by appellant to these officers while they were on the street where the coupe was found were statements in the nature of a confession. The fact is, however, that those statements did not constitute a confession, but merely were admissions of facts which were in themselves insufficient to authorize a conviction, upon either one of the two counts on which the defendant was convicted. This being so, the rule governing proof of confessions and which requires that their voluntary character be first established had no application to the real matter then at issue before the court, and all of the testimony offered by appellant in connection with his examination at that time of the witness Holland was immaterial, at least so far as counts one and three are concerned. (People v. Fowler, 178 Cal. 657 , 664 [ 174 Pac. 892 ].)

[9] Concerning the court’s instruction to the jury, appellant assigns error in thirteen of the instructions given, and error in refusal of eight instructions requested by him and refused by the court. A few points only appear to require comment thereon in this place. Instruction II, after defining the duty of an automobile driver to exercise reasonable care and to prevent injury to others, states that if a person knowing the danger, etc., recklessly, etc., operates his automobile without due respect for the rights and safety of others, and does not use such means as are reasonably within his command to prevent a collision, the law holds him criminally responsible for such negligence or wilful omission of duty, and “should he thereby occasion the death of another, he is, under the law, guilty of manslaughter.” The principal criticism directed against this instruction is that it fails to define proximate cause or to limit the remoteness of the “occasion.” As to the latter point, it is manifest that the

[10] The suggested point concerning “proximate cause” is further emphasized by appellant in connection with his requested instruction No. 15, which was refused by the court. This requested instruction reads as follows: “It is not sufficient to warrant a conviction under count I of the information that the prosecution prove and you find from the evidence that the defendant failed to use due caution and circumspection under the circumstances, but the prosecution must further prove and you must further find from the evidence that the failure to use due caution and circumspection was the approximate cause, that is, that cause which in natural and continuous sequence unbroken by any sufficient intervening cause or without which the injury would not have occurred.” The principle involved has been frequently affirmed. A recent instance is People v. Wilson, 193 Cal. 512 , 517 [ 226 Pac. 5 ], where the supreme court, in defining the conditions under which the defendant might be found guilty of involuntary manslaughter, arising out of his careless or unlawful manner of driving an automobile, included in its statement the apparently undoubted assumption that the death of the injured person must have been “proximately due to” defendant’s violation of the requirements of law which applied to him under the facts stated. But we are further of the opinion that the evidence herein did not justify defendant in demanding that this rule of “proximate cause” be included in the instructions to the jury. The request for this instruction was based upon the pretense, to which we have adverted, to the effect that Mr. Jones was killed by his own automobile. But the' actual facts concerning the immediate results of the accident were not in doubt or dispute. From the circumstances as proved, it is plain that Jones received his injuries through the instantaneous, concurrent, and united action of the two automobiles. Practically there were only two really disputed facts in the case. These related to the evidence that the defendant was the driver of his car at the time of the accident and the evidence that the collision occurred at a point south of the center of State Street.

[12] Concerning instruction 13, which informed the jury that contributory negligence is not a defense to a charge of manslaughter, complaint is made that the instruction does not define contributory negligence. But the court did define it sufficiently for the instant purpose, by using the phrase “that is, negligence on the part of the person injured which contributed to the injury.”

[13] Defendant’s requested instruction No. 2 as presented by him reads as follows: “The information filed against the defendant is merely a formal accusation, and must not be considered by you as evidence or allowed to prejudice you or influence your minds against the defendant. In a criminal ease the prosecution must prove every material element of the offense charged beyond a reasonable doubt. Probabilities or that the greater weight or preponderance of the evidence supports the allegations of the information, will not warrant a conviction. The law presumes the defendant to be innocent of the offense charged until he is proven guilty by competent evidence beyond a reasonable’ doubt. This presumption of innocence has the weight and effect of evidence in the defendant’s behalf and continues with him throughout the trial until from all the evidence you are satisfied of his guilt beyond a reasonable doubt.”

The court modified this instruction by striking out all of it except the first sentence. It was indicated in the judge’s notation on the instruction that the stricken portions were omitted because they were covered in other instructions given to the jury. Counsel for appellant assert that the parts stricken are not sufficiently covered in the instructions given to obtain for appellant a fair and impartial trial.

[14] Appellant contends that the court erred, in excepting the witnesses who were police officers, from its order granting appellant’s request that all witnesses, while not testifying, be excluded from the courtroom. These officers were the witnesses who subsequently gave testimony covering defendant’s admission to them of the fact that he was driving his car at the time of the accident. On examination of the transcript we find that the attorney for defendant objected to the presence of the police officers, for the reason that they would be important witnesses. No attempt was made to more definitely inform the judge concerning their relation to the case or the relative importance of the testimony to be given by them. The general rule is that the matter of exclusion of witnesses, and of exceptions to be made in such orders of exclusion, is discretionary; and that in the exercise of this discretion error will not be implied. In this instance, in the absence of any more particular showing to the trial court of prejudice that would probably arise from the presence in court of these persons, it does not appear that there was any abuse of discretion in the order as made.

[15] As has been stated, we think that the court erred when it sustained the objections to the questions asked of the witness Mitchell concerning the tests made by him at said street intersection, on the evening of September 21st. It only remains to determine whether it is reasonably probable that the exclusion of that evidence prevented the defendant from having a fair trial. For the purposes of this question we must assume that if he had been permitted to answer the questions, Mitchell would have testified that at the time stated, while standing at the points indicated in the questions, he would not have been able to tell whether a car

There is nothing in the record' tending to impeach the integrity of any of these six witnesses. They all agree that the light was sufficient for them to see clearly. Their testimony leaves no reasonable doubt that at the time of the collision defendant’s automobile was driven on the wrong side of the road and there is no evidence to the contrary. In view of the overwhelming effect of this evidence, it is almost impossible to believe that the jury could have found the fact to be contrary to the testimony of these witnesses, even if Mitchell had testified that at the time of the experiments made by him—and even if made under like conditions—he would not have been able to see whether an automobile was or was not south of the center line of State Street. It is our conclusion that the error which we have

The judgment and order are affirmed.

Houser, J., and York, J., concurred.

A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 2, 1926.