Opinion
Hearing Granted by Supreme Court Sept. 29, 1927.
Appeal from Superior Court, Los Angeles County; Charles S. Burnell, Judge.
Urban A. Scofield was convicted of failing to render aid following an automobile accident, and he appeals. Reversed.
COUNSEL
Wm. H. Campbell and W. T. Kendrick, Jr., both of Los Angeles (Wm. T. Kendrick, of Los Angeles, of counsel), for appellant.
U.S. Webb, Atty. Gen., and H. H. Linney, Deputy Atty. Gen., for the People.
OPINION
WORKS, P. J.
Defendant was informed against in three counts. In the first he was charged with manslaughter. The second charged him with operating a motor vehicle while under the influence of intoxicating liquor. The third count charged that defendant, while operating a motor vehicle, which vehicle collided with one being operated by the person named as defendant’s victim in the first count, caused personal injury to that person, and that defendant did "then and there fail to immediately stop and give his name and address and the registration number of his said vehicle to the said" alleged victim, "and did then and there fail to render to" the injured man "any assistance; such person being then and there in need of assistance by reason of injuries and damage caused by said collision." All three of the charges grew, of course, out of the same transaction. After a jury was impaneled and after the prosecution had rested, the charge made in the second count, upon motion of the district attorney, was dismissed. The jury disagreed upon the charge made in the first count. Defendant was convicted under the third count and appeals from the judgment of conviction and from an order of the trial court denying his motion for a new trial.
The order dismissing the charge alleged in the second count was made in the absence of the jury from the courtroom. When the trial body returned to the box the following occurred:
"[Counsel for defendant]: Could we ask that the jury be advised what the court has done, so they will know the effect of the evidence?
"The Court: No; that is a matter to be covered by instruction."
During the argument before the jury the record shows the following:
"[The district attorney]: And, among other things, it may be that you will receive instructions to the effect that, if the defendant was driving his vehicle in an unlawful manner *** and one of those might have been *** while violating the law in regard to the use of intoxicating liquor while driving an automobile, now, then, *** regardless of whether the speed was fast or slow, there is also the question involved in this manslaughter charge that he was under the influence of liquor.
"[Counsel for defendant]: *** I want to assign that as prejudicial error, the statement that intoxication is in issue here. *** I assign that as error and ask that the jury be instructed to disregard any such statement. *** That is not before the jury; driving while intoxicated is not before the jury. ***
"The Court: That is correct; that charge is not before the jury. *** But at the same time the question of intoxication is germane to the manslaughter charge. For that reason *** the court will not so instruct the jury, but will give the jury the proper instruction when the time comes as to intoxication, and the definition of intoxication.
"[The district attorney]: *** That was exactly what I had reference to, and did not mention the other matter. So *** that, if the defendant was driving an automobile while intoxicated, or while under the influence of intoxicating liquor, and that in so driving he caused the death, the causal connection between his operation of that vehicle and the death of that human being was the reason of his use of intoxicating liquor, then he would be guilty, under the evidence, of manslaughter."
Appellant requested the trial judge to instruct the jury as follows, but the request was refused:
"The crime charged in *** count 2 has been *** dismissed, and you are not called upon to further consider the charge in that count. And you are further instructed that you must disregard any evidence which has been introduced, if any, showing or tending to show, that the defendant willfully or unlawfully, or feloniously drove or operated a certain motor vehicle while under the influence of intoxicating liquor, to wit: *** [Describing the place.] And also you are instructed to disregard any evidence proving or tending to prove that [defendant] while operating the said motor vehicle was under the influence of intoxicating liquor."
The judge instructed the jury:
"The original information contains three counts. One of those counts has been dismissed. *** The function of the jury is merely to determine on the facts: Is the defendant guilty or not guilty as charged in count 1, on which he has been tried before you? Is he guilty or not guilty as charged in count 3, on which he has been tried before you?"
But the following instruction was also given:
"If you are satisfied beyond a reasonable doubt that the deceased *** came to his death, at the time and place charged in the information, as a result of an automobile driven by the defendant *** colliding with an automobile in which the deceased was then seated, and that, at the time and place, the defendant *** was driving said automobile in an unlawful manner, to wit, while the defendant *** was under the influence of intoxicating liquor, or while the automobile was being operated by the defendant *** at an unlawful rate of speed, or while the said automobile was being driven by the defendant *** upon a public highway at such rate of speed as to endanger the life, limb, or property of any person, you should find the defendant *** guilty of manslaughter."
The judge also defined to the jury the meaning of the term "under the influence of intoxicating liquor." The jury was not told, specifically, that, in determining the guilt or innocence of appellant under the third count, its members must not consider any evidence upon the question whether he was intoxicated at the time of the collision out of which the charges against him arose.
It is contended that the trial court erred in thus keeping the question of appellant’s alleged intoxication before the jury. Of course, appellant was put in jeopardy upon the charge of driving while under the influence of liquor, for the jeopardy of a defendant attaches upon any charge "when a jury has been ‘charged with his deliverance,’ and the jury stands thus charged when its members have been impaneled and sworn" People v. Hawkins, 127 Cal. 372, 59 P. 697. Appellant, in effect, was acquitted upon the charge pleaded in the second count of the information, that of driving while intoxicated, for a dismissal of that charge, after appellant had been jeopardized under it, was equivalent to a verdict of acquittal. People v. Webb, 38 Cal. 467. See, also, In re Harron, 191 Cal. 457, 217 P. 728; People v. Follette, 74 Cal.App. 178, 240 P. 502.
It was the theory of the trial court, although appellant was acquitted of the charge pleaded in the second count, that the evidence in the record which tended to support that charge could nevertheless be considered by the jury as an element aiding to a determination whether he was guilty of manslaughter. Was that theory a correct one? And, further, the jury having failed to agree upon the charge of manslaughter, and if the theory was incorrect, was the error of the court in that regard prejudicial to appellant under the charge upon which he was convicted, that or those alleged in the third count of the information?
It will be observed that the trial judge instructed the jury, in the disjunctive, that appellant must be found guilty of manslaughter if-the other requisites of the law being satisfied-the jury determined that he drove his car while intoxicated, or at an unlawful rate of speed, or at such a rate of speed as to endanger life, etc. As far, then, as the question here involved is concerned, the point may be considered as if the jury had been instructed, alone, that if it found that appellant drove the automobile while under the influence of liquor he must be convicted of manslaughter. But appellant had just been acquitted of a charge of driving while intoxicated upon the same occasion. The instruction practically told the jury that he might be tried again on the charge, and it would seem for that reason to have been erroneous.
In reaching this conclusion, if finally it is to be reached, it becomes necessary to consider People v. Wilson, 193 Cal. 512, 226 P. 5. In that case the defendant had been charged with a misdemeanor in operating an automobile in such manner as to run down and injure a pedestrian. After jeopardy had attached upon this charge the pedestrian died because of the injuries which had been received, and the operator of the car was then charged with manslaughter. He pleaded former jeopardy under the misdemeanor charge. In disposing of the plea the Supreme Court said:
"The law upon this subject is well settled in its application to cases where the defendant has committed an act of violence, which in its immediate result amounts to a misdemeanor, but which in its after consequences upon the victim of the violent act becomes, through the death of that victim, murder or manslaughter. In such an event the second prosecution is not for the same offense as the first; and the reason for this is, as is well stated in Wharton on Criminal Pleading and Practice (9th Ed.) § 476, ‘that as at the time of conviction of assault there could have been no conviction of the homicide the prosecution of the homicide is not barred by the conviction of the assault.’ See, also, 1 Bishop on New Criminal Law, § 1059, and cases cited. In the case of People v. Defoor, 100 Cal. 150 [34 P. 642], this court, while upholding the plea of once in jeopardy under the facts of that case, which did not involve the death of the injured person, nevertheless recognized the foregoing rule as applicable to cases of homicide, notwithstanding a previous trial and conviction of the defendant for the assault which subsequently resulted in the death of the injured person. In none of the cases cited by the appellant in support of his contention as to his plea of ‘once in jeopardy, does the element of death, which is the essential basis of the charge of manslaughter, appear to be present; nor upon principle do we think a case can be conceived wherein a charge of murder or manslaughter could be defeated by a plea of once in jeopardy based upon a mere misdemeanor charge, trial, or conviction of the assault or offense which had later resulted in the death of the injured victim. It was therefore not error in the trial court to strike out the defendant’s offered evidence in that regard or to direct the jury to find against the defendant upon his aforesaid plea." People v. Wilson, 193 Cal. 512, 226 P. 5.
It will be observed that the present case discloses circumstances very different from those covered by this language. Here the death of the alleged victim of appellant occurred before any charge was made against him. Here the three charges were made in the same pleading and they were all tried at the same time. Here the charge of driving while under the influence of liquor, if we consider it alone under the instruction which was given to the jury, was a necessary element in the charge of manslaughter. The latter charge was nothing without the former.
Another case deals with the question now present for consideration. In it we said:
"It, of course, is true that, if two or more offenses arise as one result from a single act, and one of them includes within itself all the others, as murder includes manslaughter, then, if the defendant has been in jeopardy for the offense which includes the others, he has been in jeopardy as to all of the offenses; and this is often true where he has been put in jeopardy for even the lowest of the offenses. In such cases more than one offense cannot be carved out of the same unlawful act." People v. Brannon, 70 Cal.App. 235, 233 P. 92.
We think the present case comes within this language and that it is not comparable with People v. Wilson, supra. The trial court, therefore, erred in refusing to give the instruction requested by appellant, and in giving its instruction to the effect that the evidence bearing upon the issue as to intoxication might be considered by the jury upon the manslaughter charge. The question yet remains whether this error prejudiced the rights of appellant under the charge upon which he was convicted, that pleaded in the third count of the information. In considering this point, and forgetting entirely the manslaughter charge, we cannot forbear to remark that it would have been better if the trial judge had given the instruction requested by appellant. Nevertheless, we think appellant’s rights under the third count of the information were not jeopardized by the two instructions which are set forth above as having been given. We think the jury must have seen that the evidence as to intoxication bore no natural relation to the charge pleaded in the third count, and in this they were aided by the instruction to the effect that they were to consider the evidence in determining the manslaughter charge. We think this instruction operated as a limitation of their right to consider the evidence and that they must so have viewed it. It is also to be observed that in the colloquy which occurred before the jury during the final argument, the judge and the district attorney used language from which the jury must have understood that its members were to consider the evidence as to intoxication as bearing upon the manslaughter charge alone.
The charge contained in the third count of the information was based on section 141 of the Motor Vehicle Act, so-called (Stats. 1923, p. 562; Deering Gen. Laws, Act 5128, part 1, p. 1895). It will be observed that it was the duty of the jury to convict under the charge as pleaded, if it were proven beyond a reasonable doubt that appellant failed to stop immediately after the collision in which his car was engaged, and then and there failed either to give to the man who was injured in the collision his name or his address, or the registration number of his automobile, or then and there failed to give assistance to the man who was injured; he being then and there in need of assistance. Section 141, supra; People v. Kaufman, 49 Cal.App. 570, 193 P. 953. Notwithstanding this state of the law, the trial judge instructed the jury:
"There have been prepared two forms of verdict for you as to each of the two counts *** As to the third count, the body of one form, reads: ‘We, the jury *** find the defendant guilty of violation of section 141 of the California Vehicle Act, a felony, as charged in count 3 of the information. ***’ If your verdict be a verdict of guilty as to count 3, that is the form you will use. *** If your verdict be ‘not guilty,’ use this form: ‘We, the jury *** find the defendant not guilty,"’ etc.
There was no instruction that, in order to find appellant guilty, the members of the jury must agree upon at least one of the alternative charges pleaded in the third count; that is, that he either failed to stop, or to give his name, or to give his address, or to give the registration number of his car, or to render necessary assistance. Appellant contends that the trial judge erred in giving the instruction which was given as to the form of verdict and in failing to instruct that the members of the jury must agree upon at least one of the alternatives pleaded in the third count before a conviction could result. We cannot avoid the conclusion that this claim of error is well founded. It is true that appellant requested the giving of no instruction as to the form of verdict, or as to the necessity for an agreement by the members of the jury upon some single element of the general crime charged in the information, but we think he need not have done so. "It is the duty of a court in criminal cases to give, sua sponte, where they are not proposed or presented in writing by the parties themselves, instructions on the general principles of law pertinent to such cases." People v. Peck, 43 Cal.App. 638, 185 P. 881. We think this rule applies to such matters of law as that covered by the instruction which the judge gave, as well as to those contemplated by such an instruction as that which he failed to give. Certainly, as it seems to us, when the judge gave the instruction as to the form of verdict to be used in the event that the jury found appellant guilty, it became incumbent upon him to instruct that the form could not be employed unless the members of the jury agreed upon at least one of the alternatives charged in the information. Under the provisions of section 141 of the Motor Vehicle Act it seems to make no difference that the alternatives were charged in the conjunctive. The harm which might well have resulted from the errors of the court is apparent. In a case presenting a somewhat similar question the Supreme Court said:
"A verdict of guilty could have been rendered *** although no two jurors were convinced beyond a reasonable doubt, or at all, of the truth of the charge, as to any one of these separate offenses." People v. Williams, 133 Cal. 165, 65 P. 323.
The evidence shows without dispute that appellant stopped his automobile, but that the man whose car was struck by that of appellant was so seriously injured that he was incapable of receiving the information which it is made the duty of a driver of an automobile, by section 141 of the Motor Vehicle Act, to give. The injured man was unconscious from the moment of the collision and his death occurred a few hours thereafter. He was driving alone and it was therefore impossible for appellant to comply with the language of section 141 to the effect that the information must be given "to *** the occupants of the vehicle collided with." "The law never requires impossibilities. *** The law neither does nor requires idle acts." Civ. Code, § § 3531, 3532. The trial judge instructed the jury:
"The duty imposed upon a driver of an automobile which collided with another vehicle to stop, render assistance, and furnish the information required by the law is a duty which he must perform in all cases, and it is immaterial whether such accident was caused by the carelessness of such driver, the carelessness of the driver of the vehicle collided with, or both, or was an unavoidable accident, such duty arises whenever such a collision occurs."
To the contention that this instruction was erroneous in that it told the jury that the information required by the law to be imparted must be given "in all cases," the Attorney General responds that the instruction "could not have been understood by the jury to mean that the defendant was required under any circumstances to do that which was either physically impossible or which would have been absurd." Notwithstanding this suggestion, we think the instruction was erroneous. Considering, however, the nature of some of the errors already pointed out, we find it unnecessary to determine to what extent the instruction last mentioned was prejudicial to the interests of appellant.
Appellant makes several other points, but we think it unnecessary to decide them.
Judgment and order reversed.
We concur: CRAIG, J.; THOMPSON, J.