People v. Leutholtz

CRAIG, Acting P. J.

The appellant was charged by information filed by the district attorney of Los Angeles County, consisting of three counts, with (1) having unlaw

[495]

fully killed one W. J. Drake without malice, (2) driving an automobile upon a public highway while under the influence of intoxicating liquor, and (3) failing and neglecting to stop and render aid after striking W. J. Drake, as required by section 141 of the California Vehicle Act. (Stats. 1923, p. 562.) A jury having found him guilty, the defendant appealed from each of the judgments entered accordingly, and from an order denying a motion for a new trial.

The first ground advanced by appellant for reversal is an asserted deficiency of the evidence to support the judgments. It is undisputed that on October 24, 1928, at about 7 o ’clock P. M., Drake was walking across Huntington Drive at or near the intersection of Ferntop Drive, when he was struck by an automobile proceeding at a rapid rate of speed in a northeasterly direction upon Huntington Drive, that he was hurled against the curbing, receiving injuries from which he died, and that the driver increased the speed of the machine soon afterward. The defendant, testifying in his own behalf, admitted that at about the same time he was driving a grey Cadillac automobile in a northeasterly direction along Huntington Drive, that he passed Ferntop Drive, and that when he arrived at the intersection of Eastern Avenue his machine collided with another car, and was overturned. He testified that his grey Cadillac had black fenders, two spare tires on the rear, each bearing a cover with a white strip in the center, tonneau shields, windshields on each side, and that he was driving at a speed between thirty and thirty-five miles per hour. Six witnesses identified an automobile of similar description as having passed the intersection of Ferntop Drive in a northeasterly direction along Huntington Drive at about the time mentioned. Briefly stated, it was testified by T. H. Hunter that a grey or tan Cadillac passed him, that he heard a noise or impact near the pedestrian zone at Ferntop and Huntington Drives, and that the Cadillac continued on; James A. Gilmer testified that a large grey ear with black fenders passed him at about said point, at about forty to forty-five miles per hour; that it bore two spare tires, covered, with white tops; that he saw something dark go out from the car toward the sidewalk. This witness drove to Eastern Avenue, where he saw a Cadillac automobile which had been wrecked, and which he swore: “ I recognized it from the rear as being the