In Re Ryan

PEEK, J.

On May 3, 1943, while riding as a guest in the car operated by petitioner, Michael Nevins was killed when the car went over an embankment approximately six and one-half miles south of the city of Grass Valley on State Highway Number 49.

The petitioner is being held for trial for a violation of section 501 of the Vehicle Code which, in part, provides: “Any person who, while under the influence of intoxicating liquor, drives a vehicle and when so driving does any act forbidden by law or neglects any duty imposed by law in the driving of such vehicle, which act or neglect proximately causes bodily injury to any person, is guilty of a felony. ...”

The complaint filed in the Justice’s Court of Grass Valley Township, County of Nevada, charged that petitioner violated the provisions of said section in that he “wilfully and unlawfully drove a motor vehicle , . . . while under the influence of intoxicating liquor,” and while so driving failed “to drive said vehicle at a speed that is reasonable and prudent and does not endanger the safety of persons or property; and said neglect and the violation of said duties did then and there proximately cause . . . the death of one Michael Nevins.” At the conclusion of the hearing the defendant was held to answer in the superior court. Thereafter an application was made by defendant in the Superior Court in and for the County of Nevada, for a writ of habeas corpus, which was denied.

It is claimed by the petitioner that the evidence produced at the preliminary hearing failed to show (1) that he was under the influence of intoxicating liquor; (2) that he committed any act forbidden by law or neglected to perform a duty imposed by law, and (3) that the offense, if any, was committed in the county of Nevada, State of California.

[312]

The only facts testified to by the State’s first witness were that while sitting alongside of the highway near a sign “forty-nine” he saw the car of petitioner pass at a speed which he estimated to be fifty-five miles an hour, although on cross-examination he stated he had never attempted to estimate speed before; that he observed the car turning out over the center white line of the highway and back again to a point where it went over the bank.