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


Cr. 3217

Decided: August 11, 1939

Jerry Giesler and Ward Sullivan, both of Los Angeles, for appellant. Earl Warren, Atty. Gen., Eugene M. Elson, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., of Los Angeles County and Jere J. Sullivan, Deputy Dist. Atty., both of Los Angeles, for respondent.

Defendant was charged in count I of the information with the crime of negligent homicide, in violation of section 500 of the Vehicle Code, St.1935, p. 173, in that he caused the death of Frank Coleman Joyce while negligently driving an automobile. In count II the same charge was made except that defendant was accused of causing the death of Patricia Marian Kelly. Verdicts of guilty were returned on both counts and defendant appeals from the order denying his motion for a new trial.

It was established at the trial that on August 27, 1938, defendant was driving an automobile on Sunset boulevard in Los Angeles and struck the two decedents when they were walking across the boulevard in the pedestrian's marked crosswalk. Two or three cars were ahead of the car driven by defendant and the two pedestrians stopped to let them pass and as they proceeded defendant's car struck them. Since no claim is made that the evidence is insufficient to support the verdict finding defendant guilty of the offense set forth in section 500 of the Vehicle Code, it will be unnecessary to set forth the circumstances in detail.

Defendant contends that the court erred in giving to the jury the following instruction: “Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, actuated by those considerations which ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care in the management of one's property or person.” At the request of defendant the court gave to the jury a number of instructions defining criminal negligence, among them the following: “Criminal negligence in degree goes so far beyond that negligence merely which suffices to impose a civil liability for damages as to constitute it criminal negligence for which the party guilty of it may be held criminally liable. In other words, in order to constitute criminal negligence there must enter into the act some measure of wantonness or flagrant or reckless disregard of the safety of others, or wilful indifference, and if no one of these elements enters into the act the person charged cannot be held guilty of criminal negligence.” It is argued that these instructions are conflicting, that the instruction given at the request of defendant states the rule applicable correctly and that a reversal should be ordered since it cannot be determined which instruction the jury followed.

The section of the Vehicle Code under which defendant was convicted provides: “When the death of any person ensues within one year as the proximate result of injuries caused by the driving of any vehicle in a negligent manner or in the commission of an unlawful act not amounting to felony, the person so operating such vehicle shall be guilty of negligent homicide *.” By the enactment of this section the legislature defined a crime different from any of the crimes which had been defined in any of the various provisions of the Penal Code. The contention now presented by defendant was made to the District Court of Appeal, Third District, in People v. Warner, 27 Cal.App.2d 190, 80 P.2d 737, 739, and the court held in that case: “It is not necessary, however, to prove criminal negligence to establish the offense of negligent homicide. * Under the information here filed against this appellant it was only necessary to prove, other than the jurisdictional facts as to time and place, that the appellant was driving a motor vehicle in a negligent manner and that such driving resulted in the death of the person therein named.” We are in agreement with the conclusions reached in the Warner case.

Defendant is not in position to complain of the fact that the instructions actually given may have been conflicting, for the condition was brought about by his own request. Moreover, he did not suffer prejudice by reason of the giving of any of the instructions, some of which were more favorable to him than he could legally demand. People v. Suesser, 142 Cal. 354, 75 P. 1093.

The order is affirmed.

WOOD, Acting Presiding Justice.

I concur: McCOMB, J.