People v. Abila

[27]

MARKS, J.

Defendant was charged with violation of section 141 of the California Vehicle Act.. This section provides that the driver of any vehicle involved in an accident resulting in injury or death, who fails to stop and render aid, is guilty of a felony. He was tried before the court without a jury and has appealed from the judgment of conviction.

The court minutes contained in the clerk’s transcript show that a trial by jury was waived by defendant. The trial court, by a

nunc pro tunc

order, corrected the •minutes to show the true fact that the trial by jury was waived in open court by defendant and his counsel. The attorney-general has presented a certified copy of this order and moved for a diminution of the record by its inclusion therein. As it is the inherent right and power of a court to cause its records to correctly state the proceedings had

(People

v.

Ward,

141 Cal. 628 [75 Pac. 306]), the motion

for

diminution of the record is granted and the certified copy of the

nunc pro tunc

order of the trial court correcting its minutes is ordered filed.

Defendant urges three grounds for a reversal of the judgment. First, that the evidence is not sufficient to sustain the judgment; second, that defendant was denied a trial by jury; and third, that there was a material variance between the allegations of the information and the proof as to the identity of the person struck by defendant’s automobile. The second contention has been disposed of by our order of diminution of the record.

Defendant urges that as no witness testified that he drove the automobile at the time of the collision the evidence is insufficient to support the judgment. We have examined the record and find ample evidence to support the judgment. At about 7:30 o’clock on the evening of October 1, 1933, Sophia Sanchez and her husband were walking on highway No. 101 near the town of San Juan Capistrano when Mrs. Sanchez was struck by a “model A” Ford coupe, the driver of which did not stop, but continued on his way. No witness identified the driver of this car, but the following evidence is ample to support the conclusion that the automobile was being driven by defendant at the time of the accident.