People v. Ross, Cr. 5501

• Decision Date: 06 March 1956
• Docket Number: Cr. 5501
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George Weldon ROSS, Defendant and Appellant.

Page 174

294 P.2d 174

139 Cal.App.2d 706

The PEOPLE of the State of California, Plaintiff and Respondent, v. George Weldon ROSS, Defendant and Appellant.

Cr. 5501.

District Court of Appeal, Second District, Division 2, California.

March 6, 1956.

Marshall Denton, Jr., Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Rudolph Pacht, Deputy Atty. Gen., for respondent.

FOX, Justice.

Defendant was convicted of (1) hit and run driving, Vehicle Code, sec. 480, and (2) manslaughter, a misdemeanor, Pen.Code, sec. 192, subd. 3(b). He appeals from the judgment. ¹

As grounds for a reversal, defendant contends (1) the evidence is insufficient to prove ² that he was the driver of the car that hit and killed the victim, and (2) that the evidence fails to establish the elements necessary to constitute the offense of manslaughter, a misdemeanor.

On December 31, 1954, between 8:15 and 9:30 p. m. Bud Robinson, while walking across Willowbrook Avenue, in Los Angeles, from east to west at the intersection of 119th Street, was struck by an automobile traveling south on the easterly side of Willowbrook (which is divided into two roadways by streetcar tracks), as a result of which he received injuries that caused his death. As Robinson crossed Willowbrook on the south, Ernest D. Jackson passed him in his car. Jackson had made a boulevard stop at Willowbrook at which time Robinson was about half way across the intersection The car that hit Robinson 'just missed the back' of Jackson's automobile immediately before striking Robinson. In order to avoid a collision with this car, Jackson had to quickly accelerate his vehicle so as to make it 'jump.'

The car that hit Robinson was traveling 40 to 45 miles per hour at the time. It failed to stop after hitting him but instead it proceeded south on Willowbrook and disappeared. Jackson backed his car up and gave chase but lost sight of the vehicle.

After the impact, Robinson was lying next to the tracks about 12 feet from the point of impact. At the time he was hit Robinson was carrying a bag in which were some beer bottles. They were apparently broken in the accident.

At approximately 1:30 on the morning of January 1, 1955, Highway Patrol Officer Foster found defendant's car parked on 114th Street down the street from the home of Gertie Mae Wilson, where defendant claimed to have spent the previous evening. The right front fender and the headlight were damaged and the windshield shatered. When defendant appeared at the Sheriff's Firestone Substation about 3:00 o'clock that morning he 'had a small wound right in the middle of his forehead like a puncture wound; or a very small cut; very fresh.' Particles of glass were found in defendant's hair and clothing identical with a piece removed from the inside surface of the windshield. A piece of amber-colored glass was removed from the damaged rightfront headlight which had the same physical and chemical properties as the broken beer bottles the victim was carrying. Green paint samples taken from the car matched those found in the street at the scene of the accident and also matched smears on the victim's trousers. A fender ornament found on the street at the scene was the counterpart of another on the vehicle. A portion of a headlight guard found at the scene of the accident matched the one on the leftfront side of the car, the one on the right being missing.

Defendant relies upon an alibi to the effect that he had been at a party at Mrs. Wilson's house on New Year's eve when the accident occurred. He had gone there with his wife and another lady in his car. During the evening he looked out and noticed his car was not in front of the house where he had parked it. He made no inquiry, however, about it because he assumed his roomer, Mr. Rashew, had borrowed it as he had done on previous occasions without asking permission since he knew that defendant was in the habit of leaving the keys in a compartment in the car from which a radio had been removed. Rashew did not drive defendant's automobile that night. Defendant and his wife and Mrs. Spruell were away from the Wilson party in defendant's car for about half an hour during the evening, returning between 8:00 and 9:00 o'clock. Because of the asserted disappearance of defendant's car, the Spruells took the Rosses home after the party was over.

In passing on the sufficiency of the evidence to sustain a conviction it should be borne in mind that before a reversal may be had, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778; People v. Frankfort, 114 Cal.App.2d 680, 689, 251 P.2d 401. We must assume in support of the judgment the existence of every fact which the trial court could have reasonably deduced from the evidence, and then determine whether the facts 'justify the inference of guilt.' People v. Deysher, 2 Cal.2d 141, 149, 40 P.2d 259, 263. It was, of course, for the trial court to pass upon the credibility of the witnesses, resolve the conflicts and inconsistencies in the testimony, and determine the weight to which it is entitled. Dillard v. McKnight, 34 Cal.2d 209, 223, 209 P.2d 387, 11 A.L.R.2d 835.

Applying these principles, it is clear that the trial court was amply warranted in drawing the inference not only that it was defendant's car that hit the victim but also that defendant was the driver of it. In fact, defendant makes no argument that his car was not involved in this accident. Rather, he seeks to escape on the theory that someone else was operating his car at the time. But the fresh wound on his forehead, the shattered windshield, and the presence of fragments of glass from the inside of the windshield in his hair and clothing, serve to identify defendant as the driver. Not without significance was the conduct of the defendant upon...