People v. McIntyre

RICHARDS, J.

This appeal is from a judgment of conviction of the defendant based upon the verdict of the jury finding him guilty upon each of three charges contained in an information filed by the district attorney of the county of Los Angeles. In count one the defendant was charged with the crime of murder in the second degree; in count two with. the offense of driving a motor vehicle while under the influence of liquor, in violation of section 112 of the California Vehicle Act, making the same a felony; and in the third count of failing to stop and render aid to a person after colliding with and causing personal injury to such person, in violation of section 141 of said act, also a felony.

The facts out of which each of these charges arose were that on January 1, 1930, between the hours of 6 and 8 o’clock P. M., one Margaret Towers was struck by an automobile driven by the defendant at the intersection of Atlantic Boulevard and Hubbard Street in the county of Los Angeles. Mrs. Towers, accompanied by her daughter,

[53]

grand-daughters and grandson, was crossing Atlantic Boulevard from east to west in the pedestrian lane when she was struck by defendant’s automobile and suffered the injuries which resulted in her- immediate death. The defendant at and prior to the time of the casualty was accompanied in his car by a girl name Ruby Burroughs. After striking Mrs. Towers the defendant traveled about 100 feet and stopped his car and started back to the scene of the accident. ■ When about halfway back he was met by a man who had witnessed the collision and who told him, “You have killed that lady,” whereupon the defendant, without going farther, returned to his car and drove off. After going a short distance he was stopped by a man who asked if they had been drinking, to which it was replied by Ruby Burroughs that the defendant had taken a drink or two that afternoon; whereupon the man suggested that someone else should drive the car, and Ruby Burroughs undertook to drive it and did so for some distance, when the defendant resumed his place as the driver of the car, driving it to the home of a friend in Glendale,' where certain incidents bearing upon the defendant’s state of intoxication, to be hereinafter referred to, occurred.

The appellant makes a number of contentions upon this appeal. The first is that the trial court committed reversible error in permitting Ruby Burroughs to be called and examined as a witness for the People. In support of his objection to the calling and examination of this witness before the trial court the defendant put forward the claim that between the time of the commission of the offenses charged in the information and the date of the trial the defendant had married Ruby Burroughs and hence that at the time she was called and sought to be examined as a witness she was his wife, and for that reason incompetent to testify as a witness against him without his consent. In support of this claim the defendant offered evidence tending to show that a marriage ceremony under the provisions of section 79 of the Civil Code had taken place before a clergyman and without a license. Section 79 of the Civil Code provides: “When unmarried persons, not minors, have been living together as man and wife, they may, without a license, be married by any clergyman. A certificate of such marriage must by the clergyman be made and delivered to