People v. Lewis
| Decision Date | 26 July 1957 |
| Docket Number | Cr. 1321 |
| Citation | 152 Cal.App.2d 824,313 P.2d 972 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE of the State of California, Plaintiff and Respondent, v. Ray LEWIS, Defendant and Appellant. |
Myers, Martin and Leedy, Encinitas, for appellant.
Edmund G. Brown, Atty. Gen., Clarence A. Linn. Asst. Atty. Gen., and Victor Griffith, San Francisco, Deputy Att. Gen., for the People.
The defendant was charged with driving a vehicle while under the influence of liquor, resulting in bodily injury, in violation of section 501 of the Vehicle Code. In a second count he was charged with manslaughter in violation of subdivision 3(b) of section 192 of the Penal Code. A jury found him guilty on both counts also finding, with reference to Count 2, that the act causing death was without gross negligence. An order was entered suspending the imposition of sentence and placing the defendant on probation for five years with the conditions that he be confined for six months in the detention facility of San Diego County, that his driver's license be surrendered for revocation, and that he should not operate a motor vehicle on public highways until authorized to do so by the Department of Motor Vehicles. He has appealed from this 'judgment', and from an order denying a new trial.
About 4:00 P.M. on October 21, 1956, an automobile driven by the defendant collided with one driven by Mrs. White at the intersection of Highway 101 with Fulvia St. in Leucadia. Highway 101 at that point has four lanes, two for north-bound traffic and two for south-bound traffic. Mrs. White, who was driving south on 101, pulled into a special left-turn lane preparatory to turning east into Fulvia St. She waited about one minute, allowing several cars to pass, and then proceeded across the north-bound lanes of 101. As she was in the westerly of the north-bound lanes she saw the defendant's car 'coming very fast' from the south in the westerly of the north-bound lanes. She thought she had time to get across 'because it was so far from me,' and she proceeded into the easterly of the north-bound lanes. The defendant's car swerved to the right, skidded, and struck Mrs. White's car, the collision occurring in the easterly of the north-bound lanes. Mrs. White was slightly injured and another woman riding with her was killed. The defendant and two others in his car were also injured.
A man, who was also in the leftturn lane waiting to turn east on Fulvia, testified that as the defendant's car came into view 2/10ths of a mile down the road, Mrs. White's car began to move and as she started across the north-bound lanes the defendant's car was from 200 to 250 feet from the intersection; that defendant's car was traveling between 50 and 60 miles per hour; and that as soon as Mrs. White started across the traffic lane the defendant applied his brakes and his car twisted and struck Mrs. White's car broadside. The posted speed limit in this area was 45 miles per hour. A lady who was standing on the corner of this intersection testified that she saw Mrs. White stop in the 'safety zone' and wait to make a left turn; that she could see no cars coming north when Mrs. White started to cross; that the road was clear to a bend on the road, which was 2/10ths of a mile away; and that as the defendant approached he put on his brakes and his car went out of control, swerved to the right and struck Mrs. White's car.
The defendant was taken to the naval hospital at Camp Pendleton and an employee of the hospital, who was ordered to do so, removed a sample of blood from the defendant's arm which he put in a sealed glass tube and delivered to one Armas, a laboratory technician in the Navy, who was then in charge of that work in the hospital. Armas ran a Bogans test on the blood sample. The result of this test was entered on the hospital records. A criminologist of the San Diego Police Department testified that this test indicated '.222% blood alcohol per cubic centimeter or per 100 centimeters'; that from .10 to .15% most persons would be under the influence of alcohol; that persons whose blood contained .15% and above would all be under the influence of alcohol; and that .222% falls into this last category.
There was a great deal of evidence concerning the drinking done by the defendant and his two companions, Taggert and Butler, on that day. Taggert testified that about 10 o'clock that morning, before they left Camp Pendleton, a number of them were drinking from a bottle of whiskey and he saw the defendant take 'at least' one drink; that he, Butler and the defendant left in the defendant's car, in which the defendant had two six-packs of beer; that they went to a golf course where the defendant gave two beers to a buddy and 'we was drinking one at the time'; that they then went to another place and the defendant gave another buddy a couple of bottles; that they then went to a beer hall in town where they stayed about an hour and had 'a few beers'; that he did not remember how many beers they had, but it was more than three apiece; that they then went to another beer bar where 'we drank a beer, one or two'; that they then went to another place where he drank a beer, but he could not remember whether the others did or not; that they then went to another place where he and Butler drank a beer; that the defendant was in another room and he did not know whether he had anything to drink; that they left there about 4:00 P.M. and started north on 101; and that the next thing he remembered was 'when Lewis hit the brakes, I looked forward, naturally, and we hit'. He further testified that he, Butler, the defendant, and two others drank the two six-packs; that he did not count the number of bottles the defendant drank that afternoon; that he himself drank 12 to 14, or maybe 20, bottles of beer during the day; and that he believed he 'was a little ahead of' the defendant.
Butler's testimony was largely to the same effect as that of Taggert. The defendant testified that he did not drink anything on most of these occasions; that he drank 1 1/2 bottles of beer when they arrived at the first place in town; that his total alcoholic consumption for the day was 3 1/2 beers; that he was...
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...347 U.S. 931, 74 S.Ct. 533, 98 L.Ed. 1082; People v. Tucker, 1948, 88 Cal.App.2d 333, 343-344, 198 P.2d 941; People v. Lewis, 1957, 152 Cal.App.2d 824, 830, 313 P.2d 972; cf. People v. One 1941 Mercury Sedan, supra, 1946, 74 Cal.App.2d 199, 202-214, 168 P.2d 443; accord, State v. Bock, supr......
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