People v. Forthun

McCOMB, J. From judgments of conviction of (1) violating section 480 of the Vehicle Code (failing after a vehicular accident to stop and comply with the requirements of section 482 [a] of the Vehicle Code) and (2) violating section 500 of the Vehicle Code (negligent homicide), defendant appeals.

Viewing the evidence most favorable to the People (respondent), the essential facts are:

At about 1:38 A. M. of December 31, 1939, a white Ford panel truck, driven by defendant and traveling at a speed of approximately 50 miles an hour, struck and killed Jack Kennedy a streetcar conductor 'while he was standing beside his streetcar at the intersection of Avenue 19 and Avenue 20 on North Broadway, Los Angeles. The driver of the truck continued on his course and did not stop at the scene of the accident.

[658]Defendant relies for reversal of the judgments on these propositions :

First: There is no substantial evidence to sustain a finding of the above-stated facts upon which the judgments were necessarily predicated, and particularly the fact that defendant was the driver of the truck that struck decedent.

Second: The trial court committed prejudicial error in (a) instructing the jury as follows:

“It is not necessary that there be proof of both a driving of a vehicle in a negligent manner and the doing of another unlawful act not amounting to a felony.

“If you are satisfied to a moral certainty and beyond a reasonable doubt that the defendant was driving the vehicle in question in a negligent manner and while so driving caused the injury which proximately resulted in the death of Jack Kennedy then you should find the defendant guilty as charged.

“Or, if you are satisfied to a moral certainty and beyond a reasonable doubt that at the time the injuries proximately resulting in the death of Jack Kennedy were inflicted, the defendant was driving the vehicle in question and while so driving committed an unlawful act not amounting to a felony, which act was the proximate cause of the death of Jack Kennedy, then you should find the defendant guilty as charged.”

and (b) in refusing to instruct the jury at defendant’s request thus: