People v. Trantham

MARKS, J.

By the first count of an information defendant was charged with the violation of section 500 of the Vehicle Code (negligent homicide), and in a second count with violation of section 501 of the same code (driving a motor vehicle while under the influence of intoxicating liquor and causing bodily injury to another). He was acquitted of the first offense charged and convicted of the second.

He presents three grounds for a reversal of the judgment: (1) that the evidence is insufficient to support the verdict and judgment; (2) that the acquittal of the first charge is

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in effect an acquittal of the second; and, (3) exclusion of evidence proffered by him.

At about 6 o’clock on the afternoon of June 20, 1937, defendant was driving his automobile west on Fresno Avenue in Kern County. It came into contact with a motorcycle being driven east on Fresno Avenue by James Massey and caused injuries to Massey which resulted in his death. Counsel for appellant admits that the evidence of intoxication was so sufficient that it cannot be challenged here.

The act forbidden by law, and committed by defendant while driving his automobile when intoxicated, which supports the conviction, is driving on his left-hand side of the road just before the accident.

The automobile and motorcycle came into a head-on collision on defendant’s right-hand side of the road. It is the theory of the people that defendant was driving on his left side of the road; that to avoid the collision, Massey, who was riding on his own right-hand side of the road, swerved to the left; that at the same time defendant swerved to his right; that these maneuvers brought the two vehicles into collision on the north, or defendant’s right-hand side of the road.

The following evidence supports this theory: “Q. Now, some time shortly after you arrived at the place where the car and motorcycle were, did you make any examination of the road surface, of the road near that car? A. Yes, sir. Q. And what, if anything,-did you find? A. Well, I found skid marks on the road where someone had thrown on the brakes and rolled the wheels and skidded from the left hand side of the road over to the right. Q. How close did those skid marks come to the defendant’s car? A. Within about six feet. Q. And about how long would you say these skid marks were from the place they began to the place they ended ? A. I judge from where the car was standing to where the skid marks started about 23 or 24 feet. ... Q. If you know, Mr. Simms, had any other ears passed and traveled over that portion of the road from the time you arrived at the collision until you saw those marks on the road? A. You mean cars passing the scenes of the accident? Q. Yes, pass over that place where you saw the skid marks? A. No, all ears stopped when they got up there and seen there had been a wreck, stopped the closest place they could stop.”