People v. Clark

• Decision Date: 23 August 1951
• Docket Number: Cr. 4597
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. CLARK.

Page 56

235 P.2d 56

106 Cal.App.2d 271

PEOPLE v. CLARK.

Cr. 4597.

District Court of Appeal, Second District, Division 1, California.

Aug. 23, 1951.

J. Russell Myers, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County, defendant was charged with the crime of manslaughter, a felony, in that on or about the 9th day of June, 1950, she wilfully, unlawfully, feloniously, and without malice, while engaged in the driving of a vehicle in the commission of an unlawful act not amounting to a felony, with gross negligence, and while in the commission of a lawful act, which might produce death in an unlawful manner with gross negligence, killed Phil R. V. H. Porter; the information further alleged that the death of said decedent was the proximate result of the driving of said vehicle by defendant.

Following a plea of not guilty the cause proceeded to trial before a jury which returned a verdict finding defendant 'guilty of manslaughter with gross negligence, a felony'. Motion for a new trial was denied. Upon arraignment of the defendant for judgment, proceedings were ordered suspended and she was granted conditional probation. This is an appeal by defendant from the conviction and sentence, and from the order denying her motion for a new trial. The attempted appeal from the conviction and sentence, being unauthorized, must be dismissed. People v. D'Elia, 73 Cal.App.2d 764, 766, 167 P.2d 253; People v. Becerra, 104 Cal.App.2d 295, 297, 230 P.2d 872.

Epitomizing the evidence necessary for consideration of the ground urged for reversal of the order denying defendant's motion for a new trial, the record reflects that shortly after 2 o'clock on the morning of June 9, 1950, one Nathan Elkins was backing a loaded truck out of the driveway on the west side of San Pedro Street between 66th and 67th Streets in the city of Los Angeles. While backing the truck out of the driveway onto the street Elkins looked to the south and saw an automobile proceeding north on San Pedro Street several blocks away. All the lights of the truck were on, including the tail light and two reflectors. The street lights were also burning on San Pedro Street. Elkins backed the truck out of the driveway, made a left turn, straightened the vehicle out so that it headed north and was about in the center of San Pedro Street proceeding north at approximately 10 miles an hour.

The truck proceeded forward about ten feet when it was struck just back of the right front fender by the automobile driven by the defendant. The truck caught fire and defendant's vehicle careened into a lamp post. The night was clear, the street was dry and in good condition. Defendant was driving about 50 miles an hour. The witness Elkins testified that he heard no sound of any brakes being applied nor did he hear the sound of a horn. He also testified that in observing defendant's automobile prior to the impact, 'it never slowed down'.

Police officers arrived shortly after the accident and observed that Elkins' truck was demolished by fire; that there was dirt and debris in the street where the two vehicles had come together; that there was a dark brush mark indicating the point of impact 18 feet west of the east curb, and that the light standard struck by defendant's car was broken. One of the police officers asked defendant if she was hurt and she replied that her knee was cut. He asked defendant if her passenger was hurt, to which she responded, 'No, he was just out drunk.' The officer asked defendant to get out of the car and he smelled a strong odor of alcohol. Upon inquiring of her as to what happened, defendant said, 'I think that tanker hit us head-on.' Defendant told the officer that her injuries were not such that she needed or wanted medical treatment. The police officer testified concerning the defendant, 'Well, she was sort of, seemed very joyous, I mean, over the fact that she knocked over that ornamental light standard. She said she was jumping--said, 'Look what I done to that ornamental light standard'.' This officer testified that in his opinion defendant was under the influence of intoxicating liquor.

She and her passenger were taken in an ambulance to the Receiving Hospital. Upon inquiry of the hospital physician as to whether defendant was in condition to undergo a sobriety examination, the doctor answered in the affirmative. The officers then gave her a sobriety test consisting of what is characterized as the 'line test', to ascertain if she was able to walk a line, 'placing her heel and toe down the line'. In this examination, according to the officer's testimony, defendant failed, being able to take only approximately two or three steps before staggering off the line one way or the other. A second test was given defendant consisting of her 'standing with her heels and toes together, placing her arms outstretched, taking her right forefinger and touching her nose, and doing the same with her left'. According to the officer she failed to pass this test. At the time of the giving of these tests the police officers detected the odor of alcohol on the defendant's breath. When asked if she was driving the car she responded that she was. When asked if she had been drinking defendant responded in the affirmative. When inquiry was made as to where she had been drinking, she replied that she and her companion had been drinking at a couple of places; that she bought a bottle and was drinking in a cafe in the 7300 block on San Pedro Street. She stated that she and the decedent went to this cafe, ordered some beer, using it as a 'chaser' while they consumed the bottle of whiskey. That when they left this place the decedent was 'in pretty bad condition' and defendant decided it would be better for her to drive. That she put him on the right hand side of the driver's seat and that he fell over against her several times. That she proceeded north on San Pedro Street but was unable to estimate her speed. She further said that 'something loomed up in front of her and hit her head-on, and she thought it was some kind of a diesel--she said she couldn't understand why he would hit her head-on.' The officer further testified that at this time her speech was 'slurred' and, 'she was very hilarious and very cocky.'

A second officer, who accompanied the one above referred to, testified that in his opinion the defendant 'was drunk.'

The record further reflects that the victim was admitted to the Los Angeles County General Hospital on June 9, 1950, where he was examined by a resident physician. The doctor found that the victim was suffering from cerebral concussion and probable fracture and dislocation of the cervical spine with cord injury. The doctor prescribed a head halter in order to put some traction on the neck, aimed at immobilizing the neck and preventing further dislocation. The doctor also informed the family of the decedent that his condition was serious and that he would not want to accept the responsibility for the decedent's removal, advising the family to leave him in the hospital. The hospital records indicated that the victim remained at the hospital until the 10th of July when he was released to his mother and taken away by her in a private ambulance.

On the following day, July 11, the victim died. An autopsy surgeon gave as his opinion that the cause of death was spinal cord injury due to fracture of the cervical vertebra, this being the spinal vertebral column in the neck region, or in ordinary language, a broken neck.

The autopsy revealed that just above the cervical swelling of the spinal cord it was reduced to a yellowish, pulpy mass, held together by only a few strands of the forward portion, and this indicated to the autopsy surgeon that extensive damage had been done to the spinal cord and that the prospects of survival after such an injury to the cord were practically nil.

As the first ground for reversal appellant contends that the trial court committed error in refusing to give the jury the following instruction: 'To find the defendant guilty you must find from the evidence not only that her conduct was of the kind described as essential to constitute involuntary manslaughter, and that such conduct was a proximate cause of the death involved in this case, but you must also find that the death occurred within one year and one day from and after June 9, 1950 as a result of the defendant's conduct.' (Emphasis added.)

Appellant's contention appears to be that but for intervening causes, viz., removal of the victim from the General Hospital by his mother, contrary to the advice of the physician in charge of the case, approximately one month after hospitalization, the victim 'may have lived indefinitely'; that the foregoing intervening event, 'resulted in the death and/or accelerated the death'. This claim is predicated upon testimony given by the autopsy surgeon that during the month elapsing between the date of injury and the removal there would 'normally' be 'some healing process'; that in the opinion of the witness the aforesaid removal of the victim 'would injure his chances' of surviving. There is also testimony by Dr. James St. John, a resident physician at the Los Angeles County General Hospital, as follows:

'Q. By Mr. Myers (Appellant's counsel). Well, Doctor, as I understand, it is your opinion, is it not, that a patient with this type of injury should not have been moved, is that right? A. Yes.

'Q. Well, I will ask this, you testified, Doctor, that you advised that this patient should not be released from the hospital? A. Yes.

'Q. What was the reason for giving that advice? A. Because his condition was critical...