People v. Ely

[630]

CURTIS, J.

By the information filed against the defendant in this action he was charged with driving an automobile which struck a human 'being, to wit, Isaac Pupkin, and said defendant failed to stop his automobile and render assistance to said Isaac Pupkin, “so struck as aforesaid.” Upon this charge he was tried and found guilty by a jury, and from the judgment of conviction, entered upon the verdict of the jury, and from an order denying his motion for a new trial, he appealed to the district court of appeal, which affirmed the judgment (Cal. App.), 258 Pac. 146. The appellant thereupon presented to this court a petition for a hearing of his said appeal by this court, which petition was granted. In most respects we are in accord with the opinion of the district court of appeal rendered herein, but are not able to agree with that portion of said opinion holding that it was not prejudicial error on the part of the trial court to refuse to give the following instruction requested by the appellant: ‘ ‘ The prosecution must establish beyond a reasonable doubt that the defendant knew he had struck a person. The guilty knowledge of defendant is as material to the prosecution as any other element of the offense charged, and if you are not satisfied beyond a reasonable doubt that defendant had such knowledge, you must find defendant not guilty.” There is no contention that this instruction does not contain a correct statement of the law as to the necessity of knowledge on defendant’s part that he had struck a person with his automobile before he could be found guilty of failure to stop and render assistance to the person so struck, nor is there any claim that it was not error on the part of the trial court to refuse to give this instruction. The only claim made in defense of the action of the court is that the refusal to give this instruction was not prejudicial error.

The court in its instructions to the jury defined the crime of which appellant was charged by quoting in full section 367c of the Penal Code, excepting the last paragraph thereof, which fixes the punishment for a violation of said section. This section of the code in substance provides that whenever an automobile strikes any person the driver thereof shall immediately cause said automobile to stop and render to the person struck all necessary assistance. By a strict interpretation of this section, standing by itself, it might be held to