People v. Emmons

CRAIG, J.

The appellant was convicted by a jury of the crime of manslaughter. He was also charged with having driven an automobile while under the influence of liquor, and the information further alleged that he had previously served a sentence for a felony. Under instructions of the trial court the jury found him not guilty of the second offense. A motion for a new trial thereafter presented was denied. He appealed from the judgment and from the ruling last mentioned.

The grounds of appeal consist of objections that the verdict and judgment were unwarranted—in that the acts or omissions proved did not amount to lawful acts unlawfully committed nor to unlawful acts as contemplated by the Penal Code—and that the court erred in instructing the jury.

Appellant’s testimony as to the occurrence was, substantially, that, accompanied by a Mrs. Hazel N. Dunn in the front seat of his automobile, and by two other persons in the rear seat, he drove from Long Beach toward Venice on the night of October 17-18, 1930; that because of a heavy fog he turned back. He swore that during their return Mrs. Dunn drove, and that he sat on the right-hand

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side of the car; that shortly before they arrived in the city of Long Beach Mrs. Dunn complained that the machine was increasing speed, and that she could not control it; that he had previously had difficulty with the throttle, which would become set and fail to release, and that he understood the cause of the irregularity; that he took hold of the steering-wheel, which she relinquished, and was attempting to “get under the wheel” to exchange seats with her as the lights of another car appeared before them, his machine struck it slightly, was unable to make a turn in the road, and left the highway, running against a tree. He swore that immediately preceding this unavoidable acceleration in speed his car was traveling not more than twenty miles per hour, but that he was familiar with the boulevards in that vicinity and had upon other occasions successfully driven forty miles an hour upon them. It is strenuously argued that this evidence furnished a complete case of accident due to defective apparatus which the defendant used utmost care to avert. However, one witness called by the People testified that while driving upon the same thoroughfare his machine was struck by the defendant's car running “right straight across in front”, thence off the roadway, and against the tree; that he observed the other automobile,. and that Emmons was driving it. Officers testified that the defendant made statements to the effect that it was very foggy, and that he had once stopped and wiped his windshield. All of the witnesses capable of observation swore that he was driving thirty-five to forty miles an hour. While the defendant was positive in his testimony that he was steering the car from the right-hand side and was attempting to “get under the wheel”, but was prevented from so doing by a dog which Mrs. Dunn' had placed between them, all of the other evidence tended to controvert such statements. None of the witnesses saw a dog, and a Mrs. Brown who rode in the rear seat, although neither friendly nor unfriendly to the defendant, but “perfectly neutral”, swore positively that she did not at any time see anyone else at the wheel, that “Emmons was driving all right”, and that she had no recollection of Mrs. Dunn having a dog. Another witness saw the defendant emerge from the left-hand side of the machine immediately after the crash, and testified that Mrs. Dunn was pronounced dead. There was evidence that