People v. Lloyd

Defendant was charged with the crime of manslaughter and was convicted. He appeals from the judgment and from an order of the trial court denying his motion for a new trial.

The killing which led to appellant’s conviction was involuntary. The catastrophe occurred at about 10 o’clock at night. Immediately preceding the tragic event appellant, along with a large number of other drivers of automobiles, was held on Wilshire Boulevard, in the city of Los Angeles, at the easterly line of Western Avenue, by the automatic traffic signals maintained at the intersection. As the assembled cars stood, in several lines, appellant was at the extreme left and at or near the middle line of Wilshire. Upon proper signal the cars moved forward in a body, crossed Western and moved westward along Wilshire. A short block west of Western, and parallel to it, Manhattan Avenue enters Wilshire from the north, but is not prolonged across it. One Lloyd Toumans had parked his automobile at the south curb of Wilshire immediately opposite the confluence of Man

Appellant complains that the trial judge refused to give to the jury various instructions proffered by him, and no other points are made for a reversal. In defending one of the refused instructions appellant says that, the killing of Youmans by him having been shown by the prosecution, the burden was east upon appellant to excuse or mitigate his apparent offense, and that the instruction was offered for the purpose of acquainting the jury with a rule of law to the effect that the excuse or mitigation need not be shown beyond a reasonable doubt, nor even by a preponderance of the evidence. The instruction was unnecessary, as no such burden as appellant contemplates is cast upon a defendant in a manslaughter case. Section 1105 of the Penal Code reads: “Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only

Appellant offered an instruction designed to acquaint the jury with the general rule that the making of a criminal charge against one raises no presumption of his guilt, and it was refused. After saying that an indictment does raise such a presumption under certain circumstances, appellant proceeds in his brief: “This presumption, however, does not apply during the trial of a defendant before a petit jury. The reasoning of the rule adopted by the courts is that the facts of the ease have been passed upon by a grand jury of reputable citizens and that their verdict, we might say, expressed by the filing of their indictment is sufficient to create a presumption of guilt for certain purposes. The trial jury in this case having been apprised of the indictment of the defendant by the grand jury, should in the interests of justice have been cautioned concerning this matter of such great importance to the defendant.” We think the proffered instruction was unnecessary and that it was therefore properly refused. The jury was instructed fully as to the presumption of innocence and concerning the doctrine of reasonable doubt. Particularly, the text of section 1096 of the Penal Code was given. This section contains the statement that “a defendant in a criminal case is presumed to be innocent until the contrary is proved,” and it exhibits

One of appellant’s claims of error relates to a lengthy instruction which was offered, but which was refused. It is necessary to quote but a part of this proposed instruction in order completely to justify the action of the trial judge in declining to present it to the jury: “The Court instructs the jury that under the provisions of Section 20 of the Penal Code of this State, in every crime of public offense there must exist a union, or joint operation of act and intent, or criminal negligence. Now, in cases of this kind, where the Indictment charges manslaughter, the overt act, of course, consisting in the driving of the automobile, and, of course, there is no deliberate intent charged against a person in a manslaughter ease such as this one; that the defendant deliberately intended to kill the deceased; but the law says that one may be guilty of a crime, to-wit, manslaughter, if as a result of their act a person is killed, although they may not have any intent to kill the person, provided only, however, if they are guilty of criminal negligence. In this case, therefore, in order to sustain a conviction, the prosecution must prove to your satisfaction beyond a reasonable doubt that the defendant was guilty of criminal negligence, and unless the prosecution docs prove to your satisfaction beyond a reasonable doubt that the defendant Charles B. Lloyd was guilty of criminal negligence then he is entitled to an acquittal; because unless there was criminal negligence on the part of the defendant Charles B. Lloyd, then there is no joint operation of the act and intent, or criminal negligence, necessary to constitute a criminal offense. Now the' word negligence, according to Subdivision 2 of Section 7 of our Penal Code, means a want of such attention to the nature or probable consequences of the act or omission as a prudent person ordinarily bestows in acting in his own concerns. Therefore, before you can be convinced beyond a reasonable doubt that this defendant Charles E. Lloyd was guilty of criminal negligence you must be convinced beyond a reasonable doubt that he did not use-due caution or circumspection on the night of the accident,, to the extent of culpability.” This -language-—and, there;

The trial judge refused to give, upon the request of appellant, an instruction which contained the following: “I instruct you that in order to convict the defendant of the crime of manslaughter charged in this Indictment on the ground that the defendant was engaged in the commission of a lawful act, the prosecution must prove that the lawful act was one which might produce death, and which did produce death, and the prosecution must go further and prove to your satisfaction beyond a reasonable doubt that the lawful act was done in an unlawful manner. Before you can convict this defendant of the crime of manslaughter as charged in this Indictment on the theory that the defendant was engaged in the commission of a lawful act without due caution and circumspection, you must be convinced beyond a reasonable doubt that the actions and conduct of the defendant on the night in question were culpable, that is to say, that he, and he alone, was to blame for the accident.” It will be observed that the first sentence of this quotation closes with the statement that “the prosecution must go further and prove . . . that the .lawful act was done in an unlawful manner.” This is not a correct statement of the

Appellant proposed the following instruction, which was refused: “The phrase, ‘without due caution and circumspection,’ as used in the definition of manslaughter, means the doing of an act, otherwise lawful, in a culpable or reckless manner. I therefore charge you that before you can find the defendant guilty of manslaughter on the theory that he performed a lawful act, which might produce death, in an unlawful manner, without due caution and circumspection, you must be convinced beyond a reasonable doubt that the defendant drove his automobile in a reckless manner, that is to say, in disregard of the rights of pedestrians and other vehicles upon Wilshire Boulevard at the tim.e of the accident, and unless you are so convinced, then I charge you that you should acquit the defendant.” That this instruction is ambiguous, and that, if given, it must have confused the jury, is to us patent. The phrase, “without due caution and circumspection,” is first defined and the proffered instruction then therefore charges what must be shown the jury, before it can convict because of the commission of a lawful act “in an unlawful manner, without due caution and circumspection,” whereas, under the language of the statute, the meaning of the phrase “without due caution and circumspection” bears no relation to the idea conveyed by the phrase “in an unlawful manner.” The statute, in so far as it is touched upon in the proposed instruction now

The trial judge refused to give the following proposed instruction: “The court instructs the jury that where doubt exists as to what conduct a defendant should have pursued in a particular case, and intelligent men and women differ as to the proper action to be had, the law does not impute guilt to anyone, if, from the omission to adopt one course instead of another, fatal consequences follow. Therefore, if in the situation which confronted this defendant at the time of the accident in question, you feel that he made an error of judgment in the course which he took, and you feel that by taking another course that was open to him the accident could have been avoided, but that he did not commit an unlawful act, not amounting to a felony, or do a lawful act, which might produce death, in an unlawful manner, and that he did not act without due caution or circumspection, then I instruct you that your verdict should be for the defendant and you should acquit him.” Appellant complains of the refusal because of the presence in the offered instruction of the language relating to the conduct which a defendant in such a case as this should pursue when confronted with an emergency. We think the point was sufficiently protected by an instruction which the judge gave and which reads thus: “The court instructs the jury that if from the evidence you believe that at the time of the accident in question the defendant was not guilty of negligence and was exercising that care, circumspection and caution which an ordinarily prudent man, seeing what the defendant saw, confronted with what confronted the defendant, surrounded by traffic and other conditions as was the defendant, would have exercised, then I instruct you it is your duty to return a verdict of not guilty.” We refer to this instruction merely as meeting the point made here by appellant, without considering whether it was in all respects proper.

Appellant asked for the following brief instruction: “In respect to all verbal statements or alleged admissions,

The closing portion of appellant’s brief commences thus: “Without burdening this court with an extended quotation of the several other instructions requested by the defendant that were refused by the trial court, we shall merely refer to the pages of the clerk’s transcript upon which these instructions occur. We would request permission in the event that the same becomes necessary to argue these points on oral argument to demonstrate their applicability to the issues presented to the jury.” From this beginning it was not to be expected that the points made upon “the several other instructions requested” would be so presented as to require us to decide them, and they are not. Not “several,” but many, requested instructions are laid before us either without sufficient means of identification of their contents or without appreciable argument, sometimes without either. We are not called upon to decide points so meagerly presented. The oral argument referred to in the quotation has never been requested and the statement concerning it has first come to our attention since the submission of the cause for decision.

Judgment and order affirmed.

Craig, J., and Thompson (Ira F.), J., concurred.