People v. Lett

WILSON, J.

Appellant was charged with the crime of manslaughter, a felony, in that “while engaged in the driving of a vehicle in the commission of an unlawful act not amounting to a felony, and with gross negligence,” he killed a human being. He was tried by the court without a jury and was found guilty of “manslaughter without gross negligence.” His motion for a new trial was denied, proceedings were suspended and he was placed on probation for a period of two years. The appeal is from the order denying his motion for a new trial.

The points relied upon by appellant for reversal are (1) that the corpus delicti was not established ; (2) that the evidence is insufficient to sustain the verdict; and (3) errors of law committed during the trial.

The contentions as to the corpus delicti and the insufficiency of the evidence are interrelated and will be considered together.

The applicable portion of section 192 of the Penal Code reads: “Manslaughter is the unlawful killing of a human being, without malice. It is of three kinds: ... 3. In the driving of a vehicle-—-(a) In the commission of an unlawful act, not amounting to felony, with gross negligence; . . . (b) In the commission of an unlawful act, not amounting to felony, without gross negligence; ...”

[919]

These facts are shown by the evidence without contradiction ; Decedent was crossing a public street in an established crosswalk; appellant was driving a car along a street at right angles to the crosswalk at a speed of about 25 miles per hour. Appellant testified as follows: Decedent “was directly in front of me when I first saw him, ... a very few feet in front, . . . about five feet . . . ; I was looking ahead”; the lights of a car traveling in the opposite direction blinded appellant ; they were 50 or 75 feet distant when they first blinded him; they were “on high” ("apparently meaning on high beam); when decedent was struck by the automobile the lights “were right on my eyes”; from the time the lights started to bother him he kept driving at the same rate of speed but he “let up on the gas—the accelerator”; he drove approximately 75 feet before stopping after he struck decedent. There is no evidence that appellant sounded his horn at any time as he approached or crossed the crosswalk.