People v. Schmah

ST. SURE, J.

Defendant drove his automobile over Carl Grove, eight years of age, fracturing the boy’s skull, as a result of which he died. The jury found a verdict of guilty of manslaughter as charged, and defendant appeals from the judgment of conviction and the order denying his motion for a new trial.

Counsel for defendant, in their opening brief, state the points as follows:

“There are two questions involved on this appeal. The first arises in connection with the meaning of an instruction to the jury concerning the intent of the defendant. In this regard the court gave section 22 of the Penal Code which provides, in substance, that intoxication is no excuse for crime, but where a particular intent is necessary for the commission of a particular crime the jury may take into consideration the fact of intoxication. The other concerns the sufficiency of the evidence to justify the verdict in view of this instruction; that is, where malice is no element of the crime, as here, and the act is made criminal because of the statute concerning negligence, is the evidence sufficient to justify the verdict where the court erroneously introduced into the case the issue,

“(a) That the act was not less criminal because the defendant was intoxicated; and

“(b) That they could look to the fact of his intoxication for the purpose of determining what his intent was when the question of his intent was entirely immaterial.”

The instruction complained of reads as follows:

“The Court instructs you that no act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition, but whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at

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the time in determining the purpose, motive or intent with which he committed the act.”

The evidence shows that on the afternoon of April 15, 1922, the defendant, accompanied by another person, was driving his automobile northerly along Nineteenth Avenue, San Francisco. His automobile wTas “zigzagging down the street,” at a rate of speed in excess of thirty miles an hour. Driving northerly he should have been on the right-hand side of the street, but it was shown that his automobile cut through some sand piled on the left-hand side of the street, in front of a building in course of construction. A short distance north of the sand pile, the deceased and his older brother were crossing the street. The older brother stepped back in time to avoid being struck by the automobile, but the younger one was struck down and run over, in the presence of his brother, his mother being but a few feet distant.