People v. Gossman, Cr. 4380
| Decision Date | 22 December 1949 |
| Docket Number | Cr. 4380 |
| Citation | 95 Cal.App.2d 293,212 P.2d 585 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. GOSSMAN. |
Joe Gossman, in pro. per.
Fred N. Howser, Attorney General, Kent C. Rogers, Deputy Attorney General, for respondent.
Appellant Joe Gossman was accused of violation of section 501, Vehicle Code, in a trial to the court was found guilty of violation of section 502 of the code and, after refusing to accept the court's offer of probation, was sentenced to thirty days in the county jail.
In brief, section 501 makes it an offense for any person under the influence of intoxicating liquor to drive a vehicle, and when so driving do any act forbidden by law or neglect any duty imposed by law in the driving of a vehicle, which act or neglect causes bodily injury to any person other than himself. The offense is made a felony. By section 502 it is made unlawful for any person who is under the influence of intoxicating liquor to drive in vehicle upon any highway. This offense is punishable by imprisonment in the county jail, or fine, or both.
There was evidence to establish that about 1:00 o'clock in the morning the defendant drove east on 28th Street, in Los Angeles, into the intersection of Griffith Avenue, where his car collided with one being driven north on Griffith Avenue by Sam Cason. Appellant's car crossed over Griffith Avenue and ran into the east curb. Three passengers in the Cason car were rather severely injured. Police officers soon arrived and found Gossman sitting in his car. Officer Barker testified that he smelled defendant's breath and it was strongly alcoholic; he asked him to walk a line and defendant was unable to do so; his car was examined and found to be in high gear. Defendant was taken to the receiving hospital and thence to the police station, where he was given a sobriety test. Officer Barker testified that in his opinion defendant was intoxicated. Officer McDowell testified that he smelled an alcoholic odor on defendant's breath. He and Cason and another witness testified that in their opinion defendant was intoxicated. Defendant stated that he had had two beers before supper, and thereafter only milk, and that when the accident occurred he was on his way to get a bottle of liquor for his wife. At the trial he denied that he had been drinking anything but milk and unfermented apple cider.
Defendant's contention on the appeal that there was insufficient evidence to prove he was intoxicated is not sustained by the record. It was for the trial court to determine whether the witnesses for the People were deceived by defendant's speech and actions after the accident and whether his appearance and conduct, as described by them, and which indicated to them intoxication, were due to something else. Upon the evidence we have mentioned, the finding on that issue is conclusive.
The point is made by defendant that he was wrongfully convicted of violation of section 502, under the information charging violation of section 501, for the reason that the latter offense does not include the former. We think it is an included offense. Where different offenses are involved the rationale of the constitutional provision (Art. 1, Sec. 13), and the statutory rule (Penal Code, sec. 1023), against double punishment is that punishment for either a greater or a lesser offense, where both are founded upon a common basic element, necessarily includes punishment for the other. As a rule, in either case, complete expiation is rendered by satisfaction of the judgment. A proper ground of distinction between included and non-included offenses is whether they involve essentially the same or different elements of conduct. If they have a common basis the greater is usually deemed to include the lesser. Thus, in offenses against the person, simple assault is included in the more serious offenses that involve acts of personal violence, for the reason that the latter cannot be committed without committing the former. Homicide cases, in which the greater offenses include the lesser, have a common basis in the unlawful killing of a human being. Various offenses involving the unlawful taking of property include theft as a lesser offense.
The difficulties which the courts often encounter do not arise out of doubts as to the general rules, but...
To continue reading
Request your trial
-
People v. Orozco
...254 Cal.App.2d 890, 62 Cal.Rptr. 632 (254 A.C.A. 1008); cf. People v. Lewis, 4 Cal.App.2d Supp. 775, 37 P.2d 752; People v. Gossman, 95 Cal.App.2d 293, 295, 212 P.2d 585.) We need not explore the effect of this possibility on the preemption issue presented by this case because the facts con......
-
Walter S., In re
...each instance where the greater crime is charged because the legal effect is to have included the lesser charge. (People v. Gossman (1949) 95 Cal.App.2d 293, 295, 212 P.2d 585.) The larger and more difficult-to-delineate second category consists of a lesser offense "within the offense speci......
-
Daniels v. People
...held that driving while under the influence (itself a statutory offense) was included in the statute adverted to in People v. Gossman, 95 Cal.App.2d 293, 212 P.2d 585. Another case directly in point, decided in 1964, is that of State v. Heitter, (Del.) 203 A.2d 69. It is in accord with the ......
-
People on Complaint of Igoe v. Nasella
...pp. 863-864; People v. Savarese, Co.Ct., 114 N.Y.S.2d 816, 834; State v. Dantonio, 18 N.J. 570, 581, 115 A.2d 35; People v. Grossman, 95 Cal.App.2d 293, 295, 212 P.2d 585; Rule 31(c), Federal Rules of Criminal Procedure for the United States District Courts, 18 U.S.C.A. Nor does the fact th......