People v. Kelley (1937)

SHINN, J.,

pro

tem.

Defendant appeals from a judgment of conviction of violation of section 502, Vehicle Code (driving an automobile while intoxicated).

The evidence, from the viewpoint most favorable to the state, shows that in the early morning hours, a Chevrolet collided with the left side of a Dodge, which was parked at the curb, proceeded ahead, struck and became locked with the left front of an Oakland, parked at the curb ahead of the Dodge, shoving the right front wheel of the Oakland onto the curb. When witnesses appeared defendant and a young-woman were standing at the scene of the disaster. At the suggestion of the owner of the Oakland an attempt was made to disengage the Chevrolet, the right front wheel of which was badly twisted and turned out of line. Efforts to shove the Chevrolet, in which efforts defendant joined, were unsuccessful. Defendant, being then and there intoxicated, entered the Chevrolet, started the motor, engaged the gears in reverse, and, while others shoved, aided in backing the Chevrolet some four or five feet. The right front wheel was so nearly demolished that the process of locomotion was described as "dragging” the front axle. The Chevrolet was outside of and practically parallel with the Oakland. The purpose in moving it was to disengage it from the other car and to park it at the curb.

The conviction of defendant cannot be upheld on the theory that he was driving the Chevrolet at the time the acci

*Supp. 773

dent occurred. He was not seen in the car until he entered it to move it, and the inferences point no more strongly to him as the one who had been driving it than to the young woman who appears to have been his companion.

The judgment must be reversed unless the acts of defendant, in the moving of the ear after.the accident, as above related, constituted a commission of the offense charged.

Section 502, Vehicle Code, reads as follows: “When Person Driving Under Influence of Liquor Guilty of Misdemeanor. It is unlawful for any person who is under the influence of intoxicating liquor to drive a vehicle upon any highway. Any person convicted under this section shall be punished upon a first conviction by imprisonment in the county jail for not less than thirty days nor more than six months or by fine of not less than fifty dollars nor more than five hundred dollars or by both such fine and imprisonment and upon a second or any subsequent conviction by imprisonment in the county jail for not less than ninety days nor more than one year or by a fine of not less than two hundred dollars nor more than one thousand' dollars or by both such fine and imprisonment.”