People v. Steinbach

WOOD (Parker), J.

Defendant was charged, in Count 1 of an information, with manslaughter in violation of section 192, subdivision 3(a), of the Penal Code (driving a vehicle in the commission of an unlawful act, not amounting to felony, with gross negligence; or in the commission of a lawful act, in an unlawful manner, with gross negligence). In Count 2, he was charged with violating section 480 of the Vehicle Code, a felony, in that he drove an automobile which was involved in an accident resulting in the death of Tom Parker, and he unlawfully failed to stop immediately and comply with statutory provisions relative to giving information and rendering aid.

In a trial by jury, he was convicted of manslaughter without gross negligence, a misdemeanor (violation of section 192, subdivision 3(b) of the Penal Code); and was convicted of

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violating section 480 of the Vehicle Code, a felony, as charged in Count 2. On Count 1, he was sentenced to imprisonment in the county jail for one year. On Count 2, probation was granted on condition that he serve one year in the county jail. It was ordered that the jail terms run concurrently.

Defendant’s notice of appeal recites that he appeals from the order denying his motion for a new trial, and from the order denying his motion in arrest of judgment. He states in his brief that he abandons his attempted appeals from the order denying his motion in arrest of judgment, and the order denying his motion for a new trial as to the conviction of manslaughter, a misdemeanor. The appeal for consideration herein is his appeal from the order denying his motion for a new trial as to Count 2.

Appellant contends that a violation of section 192, subdivision 3(b), of the Penal Code (manslaughter, a misdemeanor) is a lesser and included offense in the offense of violation of section 480 of the Vehicle Code, a felony (referred to by him as “hit and run’’ driving, a felony), and that the conviction of the lesser offense (Count 1) was an acquittal of the greater offense (Count 2). Appellant contends further that if a violation of said section 192, subdivision 3(b), is not such a lesser and included offense, then the judgments herein punished twice for a single act contrary to the provisions of section 654 of the Penal Code.

On June 22, 1957, about 5:30 a. m., while Tom Parker was walking, in a southerly direction, on Pacific Avenue and near the left (east) side of a Pontiac automobile that was parked at the west curb, he was struck and killed by a Buick automobile that was being driven at a fast rate of speed, in a southerly direction, on that avenue. Before the Buick struck him, it struck the rear bumper of the Pontiac and caused a “big bang.” The Buick did not stop at the scene of the accident but proceeded at an increased rate of speed,' south on Pacific Avenue, about three short blocks and then turned east onto another street. When the Buick struck Mr. Parker it knocked him forward several feet and nearly into the middle of the street. After the accident, the body of decedent lay crosswise of the street with the head near the center of the street. The Buick was red, and there was chrome trimming on it. Fragments of red paint were found on the street about 50 feet north of the body and about 2 feet east of the left side of the parked Pontiac (the rear bumper of which had been