People v. Ray

CRAIG, J.

The appellant was charged by information, filed by the district attorney of Los Angeles County, consisting of two counts, with having violated the Motor Vehicle Act, in that while driving an automobile in said county he collided with another vehicle, causing personal injury to the driver thereof, and did then and there fail, neglect, and refuse to stop and render aid; and also that he drove and operated said automobile upon a public highway while under the influence of intoxicating liquor. Appellant was convicted of the latter charge, and appeals from the judgment and an order denying his motion for new trial.

It is strenuously urged that “there was no evidence of any kind or description that the defendant was operating the motor vehicle, to wit, the Cadillac roadster, at the time of the accident while in an intoxicated condition, or while

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under the influence of ‘intoxicating liquor,’ ” as defined by-section 112 of the Motor Vehicle Act (Stats. 1927, p. 1436; Deering’s Consol. Supp. 1925-1927, Act 5128). The portions of said section here applicable read as follows:

“It shall be unlawful for any person . . . who is under the influence of intoxicating liquor ... to drive a vehicle on any public highway within this state.

“Any person violating the provisions of this section shall upon conviction be punished by imprisonment in the county jail for not less than ninety days nor more than one year or by imprisonment in the state prison for not less than one nor more than three years, or by a fine of not less than two hundred dollars, nor more than five thousand dollars, and upon every verdict of guilty under this section, the jury shall recommend the punishment and the court in imposing sentence shall have no authority to impose a sentence greater than that recommended by the jury.”

It is conceded that on September 25, 1927, at about 4 o’clock A. M., Melvin W. Metcalf, with three companions, was driving a For,d coupe in a southerly direction on Lincoln Boulevard, in the city of Santa Monica, and that appellant was at the same time driving a Cadillac car in a northerly direction upon said boulevard, he also having three passengers; that when Metcalf reached a point south of the intersection of Lincoln and Pico Boulevards, the two macnines collided, appellant’s car running into the left side of the Ford; that because of the crowded condition of the latter machine, Metcalf permitted his left foot to hang outside the door, which was partly open, and at the impact of the automobiles his foot was severed from the leg.