People v. Levens

YORK, P. J.

Appellant was found guilty by the court of the crime of violation of section 501 of the Vehicle Code, in that he “did willfully, unlawfully and feloniously drive a certain vehicle, to-wit, an automobile, while under the influence of intoxicating liquor, and in an unlawful manner, causing bodily injury to one Marie A. Beck, a human being”. His motion for a new trial having been denied, appellant was sentenced to state’s prison for the term prescribed by law. Such sentence was suspended by the court, appellant was placed on probation for a period of two years, and as one of the-conditions of such probation his operator’s license was suspended for a period of five years.

This appeal is from the judgment and from the order by which appellant’s motion for a new trial was denied, it being here urged that the evidence is insufficient to justify the verdict as to a violation of section 501 of the Vehicle Code, and that the court erred in ordering appellant’s driving license suspended for five years.

[457]

With respect to his first point, it is earnestly contended that the elements necessary for a conviction under section 501,

supra,

are not only that the defendant be under the influence of intoxicating liquor, but that while in such condition and in addition thereto, he must commit some act forbidden by law or neglect to perform some duty imposed by law, which act or neglect proximately results in bodily injury to some person. Appellant also maintains that the evidence is insufficient to prove that he drove his automobile in an unlawful manner.

The provisions of section 501 of the Vehicle Code are as follows: “Any person who, while under the influence of intoxicating liquor, drives a vehicle and when so driving does any act forbidden by law ór 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 and ■ upon conviction thereof shall be punished by imprisonment- in the State prison. ...”

It is revealed by the record that appellant while driving westerly on Florence Avenue at about 2:30 o’clock in the morning of January 20, 1938, collided with an unlighted automobile which was parked at an angle of forty-five degrees in front of sheriff’s substation No. 1 at 1559 Bast Florence Avenue, said automobile belonging to a friend of one of the deputy sheriffs. It further appears that appellant had some beer with his dinner at 5 o’clock of the evening before the accident occurred and had a glass of muscatel wine early that evening; that he called for a friend of his, Miss Neese, around 7:30 o ’clock and drove to the beach; from there they returned to the Figueroa Theatre at Figueroa and Santa Barbara Avenue arriving there at approximately 9 o’clock; that after the show appellant drove his companion to her home, leaving that place at about 1:30 o ’clock; that he stopped at Findley’s restaurant where he had a sandwich and a cup of coffee, and as he left said restaurant he met some neighbors and one of them, Miss Beck, asked appellant if she might ride home with him instead of riding with her three friends in their coupe. Appellant and Ms companion had traveled only a few blocks when the collision occurred, as the result of which Miss Beck sustained injuries which