People v. Cathey

PEEK, J.

By information, defendant was charged in Count One thereof with a violation of section 192 of the Penal Code (negligent homicide), resulting in the death of one Nancy Lee Hurst; and in Count Two thereof with a like vio

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lation resulting in the death of one Ben Anzini. Pursuant to the verdict of the jury, defendant was found guilty on both counts. He now appeals from the judgment of conviction as well as from the denial of his motion for a new trial.

The record, when viewed as we must in the light most favorable to the prosecution, shows that immediately prior to the fatal accident, defendant, in his pickup truck, was driving south on Highway 101 between Myers Plat and Miranda in Humboldt County. Admittedly, from approximately noon until shortly before the accident, defendant had consumed several beers at bars and at the home of friends. With him were two companions, Peter Dean Mosby and Robert Myers. South of Myers Plat the highway descends and curves to the right. At the south end of the curve is a bridge. As defendant’s vehicle entered this area its speed was estimated variously from 45 to 80 miles per hour. In attempting to negotiate the curve, defendant drove over the center double line into the north lane of traffic and crashed head-on into the car being driven by Mrs. Hurst. As a result of the collision, she and Anzini were killed instantly and her two children were seriously injured. The force of the collision threw Mosby through the windshield and partially on to the hood of the truck, pinning his hips between the steering wheel and the instrument panel. The defendant was found under the wheel and Myers in the seat next to him. Mosby’s face was severely cut and he suffered numerous bone fractures. Defendant was not cut, but suffered a contusion on his chest and a collapsed lung. Myers was not seriously injured.

Both defendant and Mosby were taken to the Garberville Hospital. Although defendant was in shock, he appeared coherent. A Dr. Gerald Phelps, who examined him at approximately 8 o ’clock that evening, testified to the extent of defendant’s injury and that when he asked defendant if he was the driver of the car the defendant answered “yes.” At approximately 8:40 that evening the doctor administered Demerol to the defendant. At 8 :30 that evening a blood sample was taken from the defendant’s arm. Robert P. Lorenson, a laboratory technician employed at the Humboldt Medical Laboratory, testified that the blood sample showed 1.3 blood alcohol content. Dr. Robert R. Morris, a pathologist, testified that if a blood sample taken at 8 :30 produced a 1.3 reading and the last drink taken was at 5 :30 p. m., the alcohol content in the blood at 6:45 p. m., when the accident occurred, would have been 1.7, showing defendant to have been intoxicated