In Re Reid

SLOANE, P. J.

The defendant in the above-entitled matter seeks discharge, under a writ of

habeas corpus,

from a commitment of the examining magistrate on preliminary examination in the Justice’s Court of the third township of the county of Fresno, under a complaint charging defendant with manslaughter, and failure to stop and render assistance after an automobile accident. It is the claim of petitioner that the evidence introduced on the preliminary hearing is insufficient to show probable cause for the order of commitment.

The transcript of the evidence taken on the examination is before us. It sufficiently appears that one Clarence Lindstrum was, on the night of November 18, 1929, killed by being run into by an automobile. He was apparently walking in a westerly direction on Tulare Avenue, a high

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way near the city of Fresno. There were no eye-witnesses of the tragedy, and the connection of the defendant therewith rests wholly upon circumstantial evidence.

We think, however, the evidence is sufficient to show probable cause for a finding that the deceased was struck and killed by an automobile driven by the defendant. There is, however, nothing to support the conclusion that the accident was occasioned by the criminal negligence of the driver. The automobile was being driven in its legitimate operation on the highway. The doctrine of res

ipsa loquitur

does not apply, and in order to constitute the killing of Mr. Linstrum manslaughter, the burden is on the People to show that the act was the result of the driver’s negligence. If the only basis for the commitment was the charge of manslaughter we might be justified in holding that the proof was insufficient to establish probable cause. The order of commitment, however, is based upon the further complaint that after the accident the driver of the car failed to stop and render assistance. The evidence in the record sustains the proposition that this was the fact, and if the identity of the defendant as the driver of the ear is sufficiently shown, the commitment must be sustained on the charge of failing to stop and render assistance.