People v. Ely

OGDEN, J. pro tem.

This appeal presents the question whether, after the repeal by the Legislature in 1943 of section 500 of the Vehicle Code (negligent homicide), a prosecution lies under section 192 of the Penal Code (manslaughter) where the homicide is caused by the driving of a vehicle.

The respondent was charged by information with the crime of manslaughter, the charge being based upon the death of one John Jenkins as the result of a collision, on February 17, 1945, between an automobile operated by the former and one in which the deceased was a passenger.

[730]

The trial court, upon motion of respondent, set aside the information, and from this order the People appeal.

It is the contention of respondent that the enactment by the Legislature in 1941 of the amended section 500 of the Vehicle Code, pertaining to the offense of negligent homicide, effected a repeal of Penal Code section 192, insofar as its provisions defining' the offense of manslaughter were applicable to homicide caused by the driving of a vehicle, and that there has been no revivor thereof.

Section 500 of the Vehicle Code, as amended in 1941, read as follows: “When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any vehicle with reckless disregard of, or wilful indifference to, the safety of others, the person so operating such vehicle shall be guilty of negligent homicide, a felony, and upon conviction thereof shall be punished by imprisonment in the comity jail for not more than one year or in the State prison for not more than three years. Hereafter, the provisions of the Penal Code, defining.involuntary manslaughter, shall not apply to homicide caused by the driving of any vehicle.” (Stats. 1941, chap. 279.)

In 1943 the Legislature expressly repealed this entire section of the Vehicle Code and by the same act (Stats. 1943, chap. 421) section 193 of the Penal Code was amended. Chapter 421 reads as follows: “Section 1. Section 500 of the Vehicle Code is repealed. Sec. 2. Section 193 of the Penal Code is amended to read: 193. Manslaughter is punishable by imprisonment in the State Prison for not exceeding 10 years, except that a violation of subdivision 2 of section 192 of this code resulting from the operation of a vehicle is punishable by imprisonment in the county jail for not more than one year or in the State Prison for not more than five years.” The Legislature did not, however, at that session reenact Penal Code section 192 or otherwise redefine the offense of manslaughter.