People v. Thurston

• Decision Date: 06 February 1963
• Docket Number: Cr. 1854
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent. v. William Ray THURSTON, Defendant and Appellant.

Page 254

28 Cal.Rptr. 254

212 Cal.App.2d 713

The PEOPLE of the State of California, Plaintiff and Respondent. v. William Ray THURSTON, Defendant and Appellant.

Cr. 1854.

District Court of Appeal, Fourth District, California.

Feb. 6, 1963.

Stanford & McDonough, by Joseph P. McDonough, San Diego, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.

MONROE, Justice pro tem.

The defendant and appellant appeals from a conviction of a violation of Section 23101 of the Vehicle Code, which makes it a felony for any person while under the influence of intoxicating liquor to drive an automobile and while so doing to neglect any duty imposed by law, which act of negligence proximately causes injury to another than himself. The indictment charged that the defendant did

'* * * drive a vehicle, to wit, an automobile, while under the influence of intoxicating liquor, and in so driving did acts forbidden by law, to wit VC 22350 (Basic Speed Law), VC 23103 (Reckless Driving), 22107 (Turning Movements), and 21658(a) (Laned Roadways), which acts proximately caused bodily injury to another person, to wit, Ray Deming.'

Appellant's assignments of error grow out of his contention that there was no substantial evidence to establish the doing of any act prohibited by the Vehicle Code which was the proximate cause of injury to another. The decision of that question will therefore be determinative of most of the issues here involved.

In People v. Clenney, 165 Cal.App.2d 241, 331 P.2d 696, the court, in an exhaustive and well reasoned opinion, held that the language of Vehicle Code Section 23101 (then Section 501) was properly construed as meaning that to establish a conviction there must be proved in addition to the act of driving an automobile while under the influence of intoxicating liquor some additional act which constituted a violation of the Vehicle Code and which was a proximate cause of personal injury to some other person. The court stated at page 253, 331 P.2d at page 704,

'We hold that the 'any act forbidden by law' or the 'neglects any duty imposed by law' in section 501 of the Vehicle Code refers to acts forbidden by the Vehicle Code and to duties imposed by the Vehicle Code.'

In People v. Clark, 202 A.C.A. 573, 576-577, 20 Cal.Rptr. 803, 805-806, the court said,

'In order to prove felony drunk driving, the People had the burden of establishing beyond all reasonable doubt the following elements of the offense: (1) that the defendant drove a vehicle on the public highway; (2) that he was then and there under the influence of intoxicating liquor; (3) that he did some act forbidden by law or neglected a duty imposed by law in the driving of such vehicle; and (4) that such act or neglect proximately caused bodily injury to a person other than himself.'

The facts which led up to the arrest of appellant are as follows: Appellant and his friend, Raymond Deming, had spent the evening together and at various places of entertainment had consumed a very considerable quantity of intoxicating liquor. The evidence is overwhelming that both of them were very drunk. The evidence is satisfactory that appellant was so drunk that he was a menace on the highway. At 1:20 a. m. on March 12, 1962, appellant, accompanied by Deming, drove his automobile easterly on Grand Avenue in Pacific Beach in San Diego. His car collided with another car which was parked at the curb. This second car was knocked forward into the rear of a third car likewise parked. The two parked cars suffered what was described by the investigating officers as 'heavy damage.' Apparently no one saw the accident, nor did anyone observe the manner in which appellant was driving. Apparently both the appellant and Deming were sufficiently intoxicated that they remembered nothing about it. Mr. Deming was taken to the Naval Hospital, where he was confined for several weeks. Although he exhibited no outward evidence of injury, there was evidence that he had received some degree of concussion. How much of his time in the hospital was occasioned by this injury and how much by overindulgence in alcohol is not certain.

The appellant, in all stages of the proceeding, has made no contest of the proposition that he was intoxicated and while so intoxicated operated his automobile. He contends, however, that he was not guilty of any additional violation of the Vehicle Code and that there was no substantial evidence to establish such charge.

A careful examination of the record demonstrates to this court that appellant's contention is well taken. Although it is stated that the automobiles that were parked at the curb suffered 'heavy damage,' there is no sufficiently explicit description of that damage to constitute any basis for a conclusion as to the speed of the automobile. Mr. Price, one of the investigating officers, testified that in making a report of the accident it was stated the probable speed of appellant's automobile was 35 miles per hour and that the scene of the accident was a 35 m. p. h. zone. Questioned as to how he arrived at the estimate, he testified as follows:

'A. Well, there was no indication of speed. At the point of impact there was no indication of slowing, any type of braking, or anything. It was a straight hit. In other words, there was no indication that we could use to show speed at this point. We can only assume that he was going the speed limit; probably faster because of the results of the accident.

'Q. But you, or someone who made the investigation with you of this accident, put 35 miles an hour as their best estimate of his speed, is that right? Is that how the 35 got in there?

'A. I would assume so.'

The other officers, although stating that the report was correct, furnished no evidence that would indicate the actual or approximate speed. To sum up the testimony of the officers it is apparent that they found nothing to indicate an unlawful speed and felt justified in assuming 35 miles per hour because considerable damage resulted. It is obvious that if an automobile proceeding under power strikes another automobile at a speed of anything like 35 miles per hour heavy damage will result.

In this connection appellant complains that the charge in the indictment as to a violation of the basic speed law is insufficient in that such violation is not charged as required by section 40503 of the Vehicle Code. The decision in People v. Clenney, supra, apparently supports this contention. However, in view of the fact that it is held that there was not sufficient evidence to establish that charge, we need not decide that question. The appellant attacked the sufficiency of the indictment and also moved for a directed verdict. The questions arising with reference thereto are no longer important when the court determines that the evidence was insufficient to establish the additional violations as required.

With regard to the charge of reckless driving, it is held...