People v. Consulter

TYLER, P. J.

Defendant was charged upon an information filed by the district attorney of the city and county

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of San Francisco with the crime of manslaughter. He was convicted. A motion for a new trial was made and denied.

This is an appeal from the judgment and order. The facts are simple. There is evidence in the record to show that on the thirtieth day of August, 1925, at about 7 o’clock in the evening, one Martin Thorsen, accompanied by his wife and two young children, a son and daughter, were standing within a safety zone situated on the east side of Mission Street and Courtland Avenue. The boundary line of the zone was marked upon the surface of the highway and also upon a police standard located on the southerly end thereof. Thorsen and his family were waiting for a northbound car on Mission Street. The evening was clear and it was still daylight. At this time defendant was returning from a picnic in an automobile. He was driving the machine accompanied by a party of friends. As he approached the intersection of the streets named he was proceeding in a northerly direction along Mission Street down the incline which there exists, driving on the car tracks at a speed estimated by witnesses at about thirty miles an hour. As he neared the intersection of the streets he left the ear tracks and drove his car directly into the safety zone, striking Thorsen and his little daughter. His car, after passing over Thorsen, continued on for a distance of some two hundred feet when it was brought to a stop. Defendant was then questioned by a police officer as to who was driving the car. This officer testified that defendant had been drinking. By reason of the impact Thorsen received serious injuries which caused his death some three hours later. His chest and ribs were crushed and his lungs and liver both punctured. The buildings on both sides of Mission Street where the deceased met his death are occupied by stores, it being a business district. In proof of this fact there was offered and received in evidence the testimony of certain police officers. The learned trial court instructed the jury upon this subject in conformity with section 114 (a) of the Motor Vehicle Act as it existed at the time deceased met his death. That section reads as follows: A “business district” for the purposes of this act shall mean the territory contiguous to a public highway when fifty per cent or more of the property fronting on such highway for a distance of throe hundred feet, or more, is occupied by buildings in