People v. Ross

FOX, J.

Defendant was convicted of (1) hit and run driving (Pen. Code, §480), and (2) manslaughter, a misdemeanor (Pen. Code, §192, subd. 3(b)). He appeals from the judgment.

1

As grounds for a reversal, defendant contends (1) the evidence is insufficient to prove

2

that he was the driver of

[708]

the ear that hit and killed the victim, and (2) that the evidence fails to establish the - elements necessary to constitute the offense of manslaughter, a misdemeanor.

On December 31, 1954, between 8 :15 and 9 :30 p. m. Bud Eobinson, while walking across Willowbrook Avenue, in Los Angeles, from east to west at the intersection of 119th Street, was struck by an automobile traveling south on the easterly side of Willowbrook (which is divided into two roadways by streetcar tracks), as a result of which he received injuries that caused his death. As Eobinson crossed Willowbrook on the south, Ernest D. Jackson passed him in his ear. Jackson had made a boulevard stop at Willowbrook at which time Eobinson was about halfway across the intersection. The car that hit Eobinson “just missed the back” of Jackson’s automobile immediately before striking Eobinson. In order to avoid a collision with this car, Jackson had to quickly accelerate his vehicle so as to make it “jump.”

The car that hit Eobinson was traveling 40 to 45 miles per hour at the time. It failed to stop after hitting him but instead it proceeded south on Willowbrook and disappeared. Jackson backed his ear up and gave chase but lost sight of the vehicle.

After the impact, Eobinson was lying next to the tracks about 12 feet from the point of impact. At the time he was hit Eobinson was carrying a bag in which were some beer bottles. They were apparently broken in the accident.

At approximately 1:30 on the morning of January 1, 1955, Highway Patrol Officer Poster found defendant’s ear parked on 114th Street down the street from the home of Gertie Mae Wilson, where defendant claimed to have spent the previous evening. The right front fender and the headlight were damaged and the windshield shattered. When defendant appeared at the Sheriff’s Firestone Substation about 3:00 o’clock that morning he “had a small wound right in the middle of his forehead like a puncture wound; or a very small cut; very fresh.” Particles of glass were found in defendant’s hair and clothing identical with a piece removed from the inside surface of the windshield. A piece of amber-colored glass was removed from the damaged right-front headlight which had the same physical and chemical properties as the broken beer bottles the victim was carrying. Green paint samples taken from the ear matched those found in the street at the scene of the accident and also matched smears on the victim’s trousers. A fender ornament