People v. Okada

GOULD, J.,

pro tem.

In 1935 the California state legislature added to the category of crimes a felony denominated “Negligent Homicide”, in these words: “When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any vehicle in a negligent manner or in the commission of an unlawful act not amounting to felony, 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 county jail for not more than one year or in the state prison for not more than three years.” (Stats. 1935, chap. 764; sec. 500, Vehicle Code.)

Defendant herein was accused by information of ‘ ‘ the crime of negligent homicide in violation of section 500, Vehicle Code, a felony, committed as follows: That the said S. H. Okada on or about the 18th day of December, 1935,

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. . . did willfully, unlawfully and feloniously operate a vehicle, to wit, an automobile, in a negligent and unlawful manner, causing the death of one Clifford Merrill Hippie, a human being”. Upon trial a jury found him guilty and he was sentenced to serve one year in the Los Angeles County jail. Prom the court’s judgment and orders denying motions for new trial and in arrest of judgment defendant appeals.

It is to be noted that the statute is phrased in the alternative, having to do with death resulting from injuries ‘1 caused by the driving of any vehicle in a negligent manner

or

in the commission of an unlawful act not amounting to a felony”. In the information filed herein appellant was charged only under the first alternative, i. e., with “operating a vehicle to wit, an automobile, in a negligent and unlawful manner”. Nevertheless, the court instructed the jury concerning the “commission of an unlawful act not amounting to a felony”, and further told the jurors: “It is not necessary that there be proof of both a driving of a vehicle in a negligent manner and the doing of another unlawful act not amounting to a felony. If you are satisfied to a moral certainty and beyond a reasonable doubt that the defendant was driving the vehicle in question in a negligent manner and while so driving caused the injury which proximately resulted in the death of Clifford Merrill Hippie, then you should find the defendant guilty as charged. Or, if you are satisfied to a moral certainty and beyond a réasonable doubt that at the time the injuries proximately resulting in the death of Clifford Merrill Hippie were inflicted the defendant was driving the vehicle in question and while so driving committed an unlawful act not amounting to a felony, which act was the proximate cause of the death of said Hippie, then you should find the defendant guilty as charged.” Two other instructions also treated of the same subject.