19220214 - People v. Dingle

People v. Dingle (1922) 56 Cal.App. 445

[Crim. No. 843 

February 14, 1922]

COUNSEL

A. E. Koepsel for Appellant.

U. S. Webb, Attorney-General, Arthur Keetch, Deputy Attorney-General, and John W. Maltman for Respondent.

OPINION FINLAYSON, P.J.

    {Page 56 Cal.App. 447} Defendant was charged with a violation of that provision of section 17 of the Motor Vehicle Act whereby it is declared that "No person who is under the influence of intoxicating liquor . . . shall operate or drive a motor . . . vehicle on any public highway within this state." (Stats. 1919, p. 214.) He was tried before a jury, was found guilty as charged, and was sentenced to imprisonment in the county jail for the term of six months. On this appeal from the judgment he contends that the evidence is insufficient to justify the conviction in that it fails to show that he was intoxicated, that in cross-examining one of defendant's witnesses relative to a certain bottle and its contents, the district attorney was guilty of misconduct, and that the court erred (a) in permitting the district attorney to pursue such line of cross-examination, (b) in giving a certain instruction, and (c) in refusing to give an instruction in the form requested by defendant.

   The evidence was clearly sufficient to justify the verdict. It is conceded that at the time laid in the information defendant was operating and driving an automobile on a public highway in the city of Anaheim. The whole case revolved around the question as to whether defendant was "under the influence of intoxicating liquor," within the meaning of that phrase as used in the Motor Vehicle Act. Witnesses for the prosecution testified that defendant's automobile, while being driven by him, "zigzagged" down the street from one side to the other; that he drove his car so that it crossed directly in front of that of another automobilist who was traveling in the same direction, forcing the latter to the curb and compelling him to stop; that when defendant was taken from his machine by the arresting officer he staggered and walked very unsteadily; that at times his talk was thick; that he said to the officer who arrested him, "I guess I am too full to drive it"; that he talked as loud as he could, and applied profane and  {Page 56 Cal.App. 448} opprobrious epithets to a witness who was keeper of an auto park simply because the latter would not guarantee that defendant's car would not be stolen if he parked it on the witness' premises. The last-mentioned witness likewise testified that defendant's breath smelt "like sour wine -- beer smell."

   We entertain no doubt as to the sufficiency of this evidence to show that defendant was "under the influence of intoxicating liquor," within the meaning of the statute. The act contains no definition of those words. It doubtless is true that not any and every "influence" produced by intoxicants will subject one to the penalties prescribed by the statute for this offense. As was said by the Wisconsin supreme court in Bakalars v. Continental Casualty Co., 141 Wis. 43 [18 Ann. Cas. 1123, 25 L.R.A. (N.S.) 1241, 122 N.W. 721], "The 'influence of intoxicants' is a very elastic term." There the court was considering the meaning of the phrase "under the influence of any intoxicant," as used in an accident insurance policy. Upon the question of the discernible effects of intoxicating liquor, the Wisconsin court further said: "We are told by physicians and experimenters that the most trifling quantity of alcohol has some effect, and that its effect persists for days, if not permanently, so that one is literally under the influence from a single ordinary potion. We know, as a matter of common knowledge, that one of the first influences may be to stimulate those very faculties of observation and alertness which would improve the capacity of the subject to shield himself from danger, or escape, and that some such degree of influence of an intoxicant would not in any respect increase the peril of injury." If, as stated by the learned author of the opinion in this Wisconsin case, the most trifling quantity of alcohol produces an influence that will persist for days, if not permanently, it is a natural and almost necessary assumption that the words "under the influence of intoxicating liquor" were not inserted in the Motor Vehicle Act for the purpose of fastening guilt in the case of every and any "influence" due to the use of intoxicating liquors, however slight. The field, therefore, is open for construction to ascertain just what degree or kind of "influence" is within the purview of the statute.

    {Page 56 Cal.App. 449} We shall not assume to give any complete or all-inclusive definition of these words of the statute. We shall not undertake to express with precision the exact constituent ingredients of the word "influence," as employed in this act. However, with respect to the meaning of the phrase "under the influence of intoxicating liquor," as used in this statute, we think we are well within the bounds of accuracy in saying that if intoxicating liquor has so far affected the nervous system, brain, or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then such driver is "under the influence of intoxicating liquor" within the meaning of the statute.

  If defendant's condition and conduct be tested by the foregoing definition, it must be held that the evidence against him was sufficient to justify a finding that he operated and drove his automobile while "under the influence of intoxicating liquor." His staggering walk, his thick tongue, his loud and boisterous language, his admission that he was too "full," to drive his car, and, as one witness testified, the smell of sour wine or beer upon his breath, were sufficient to show that he had indulged in an alcoholic beverage of some kind. And the fact that his automobile "zigzagged" down the street and crowded another automobilist to the curb shows that he was so far under the influence of the intoxicant that, to an appreciable degree, he had lost the ability to drive his car in the manner that an ordinarily prudent and cautious person, in the full possession of his faculties and using due care, would have driven it under like conditions.

  Defendant put upon the witness-stand one Max Selscheider, the proprietor of a resort known as the Liberty Grill, who testified that he talked with defendant while the latter was in the witness' establishment; that this was shortly before defendant's arrest; and that while defendant was in the witness' resort he drank nothing but near-beer, and walked and talked all right. Defendant was arrested almost immediately after driving his car from in front of the Liberty Grill. On his cross-examination of Selscheider, {Page 56 Cal.App. 450} the district attorney exhibited to him a bottle on which was a label stating that the alcoholic content of the bottle was twenty-five per cent. The witness testified that the bottle was similar to other bottles kept on hand in his resort and sold by him to customers, and that a bottle of that description contains a "tonic," the alcoholic content of which is, as stated on the label, twenty-five per cent. The witness denied, however, that he had sold any such bottle of "tonic" to defendant on the evening in question, or that he had seen any employee sell such a bottle to defendant. All of this evidence went in over the vigorous objection of defendant's counsel. It was admitted upon the district attorney's assurance that he would "connect it up with the case later on." Later, on rebuttal, the prosecution sought to show by the arresting officer that the latter had found a bottle in defendant's car. We infer from the record that it was the district attorney's intention to prove by the officer that he had found in defendant's car a bottle similar to the one which the prosecutor had exhibited to the witness Selscheider on his cross-examination of that witness. To the district attorney's question asking the arresting officer if he had found any bottles in defendant's car, the defendant objected and the objection was sustained. Thereupon, after an unsuccessful attempt by the prosecuting officer to file the bottle as an exhibit in the case, defendant's counsel moved that all the testimony of the witnesses in reference to any bottle be stricken out and the jury instructed to disregard such testimony and likewise to disregard the bottle which had been exhibited to the witness Selscheider. The court granted the motion to strike, and admonished the jury as follows: "I instruct you, all of the evidence pertaining to the bottle which was testified to by the witnesses as containing liquor of twenty-five per cent alcohol is not for your consideration. All the balance of the evidence in the case is for your consideration."

   It is claimed that in offering the bottle in evidence and in cross-examining defendant's witness with respect thereto, the prosecutor was guilty of misconduct. It is not at all apparent that the prosecuting officer acted in bad faith, or that he asked the questions or exhibited the bottle to the witness for the wanton purpose of raising a prejudice against the defendant. Indeed, from the questions asked of  {Page 56 Cal.App. 451} the arresting officer on rebuttal it would seem that the district attorney had some reason to believe that a bottle such as that shown to the witness Selscheider had been found in defendant's car. If such were the case, and if it also appeared that the contents of the bottle in defendant's car, if any bottle was found there, had been wholly or partially consumed, there would be ground for the inference that someone in Selscheider's resort had sold the bottle to defendant and that the latter had drank therefrom, thus not only tending to discredit Selscheider's testimony that defendant had drank nothing but near-beer while in the resort, but also tending to show that the defendant had, indeed, drank some alcoholic liquor on the evening in question, prior to his arrest. So that it is not clearly apparent that the district attorney's position as to the admissibility of the evidence was wrong in law. But conceding that it was, a judgment of conviction cannot be reversed for a mistaken view as to the admissibility of evidence which the prosecutor is honestly seeking to lay before the jury, unless, from an examination of the record, we may be of the opinion that a miscarriage of justice has been caused. In view of the order granting defendant's motion to strike out all of the testimony relative to the bottle and the court's admonition to the jury to disregard all that evidence -- an admonition which it will be presumed was heeded -- it cannot be said that the defendant's cause suffered by reason of the questions propounded by the prosecutor and the exhibition of the bottle to the witness Selscheider. So, also, any error which may have been committed by the court in overruling defendant's objections to the questions which were put to the witness on his cross-examination by the district attorney was cured by the order granting defendant's motion to strike, coupled with the court's admonition to the jury. ( People v. Terramorse, 30 Cal. App. 267 [157 P. 1134].)

  Complaint is made of the following instruction: "The information in this case is filed by the district attorney under section 17 of the motor vehicle law of 1919, which reads in part as follows: 'No person who is under the influence of intoxicating liquor . . . shall operate or drive a motor vehicle on any public highway within the state.' The court instructs you that under this section it is not necessary that the person should be so-called 'dead drunk' {Page 56 Cal.App. 452} or hopelessly intoxicated, but if you shall be convinced, beyond a reasonable doubt, from the evidence in the case, that the defendant was in such condition from the use of intoxicating liquors that it so affected his acts or conduct, or movements, that the public or persons coming in contact with him could readily see and know that it was affecting him in this respect, and was reflected in his walk, acts and conversation, and, if you shall find from the evidence in the case, beyond a reasonable doubt, that these conditions resulted from the use of intoxicating liquors and that the defendant was operating a motor vehicle upon a public highway in the county of Orange, when in such condition, then the defendant was under the influence of intoxicating liquor within the meaning of the statute and you should find him guilty as charged."

   Appellant's criticism of this instruction is based upon the claim that it does not properly define "intoxication." The statute does not say that no person shall operate or drive a motor vehicle on the public highway while "intoxicated," but that no person shall operate or drive such a vehicle on the public highway while "under the influence of intoxicating liquor." The instruction, therefore, very properly does not undertake to define "intoxication," but does state what acts and what condition will justify a finding that the accused is "under the influence of intoxicating liquor," within the meaning of the statute. It is probably true, however, that the phrase "under the influence of intoxicating liquor" is, substantially and to all practical intents and purposes, synonymous with such words as "intoxication" and "drunkenness." But even so, the instruction gives a good definition of "intoxication." In St. Louis etc. Ry. Co. v. Waters, 105 Ark. 619 [152 S.W. 137], the Arkansas supreme court defined intoxication, or drunkenness, substantially in accord with the definition given in this instruction. In that case the court said: "A man may be said to be drunk whenever he is under the influence of intoxicating liquors to the extent that they affect his acts or conduct so that persons coming in contact with him could readily see and know that the intoxicating liquors were affecting him in that respect."

   Moreover, the instruction was, if anything, too favorable to defendant. A person may be so far under the influence {Page 56 Cal.App. 453}  of intoxicating liquor that, to an appreciable degree, there is an impairment of his ability to operate his automobile in the manner that an ordinarily prudent and cautious person, in the full possession of his faculties, would operate a similar vehicle under like conditions; and yet the person whose ability to operate his car is thus impaired might not be so drunk that the public, or persons coming in contact with him, could "readily" see and know that intoxicating liquor was affecting his acts or conduct and was being reflected in his walk and conversation. The drink may have impaired his ability to drive his car properly by imparting to him a dash of dangerous recklessness, without in anywise manifesting itself in his speech, or in his walk, or be noticeable in his intellectual processes. We find no prejudicial error in this instruction.

  Finally, it is contended that the court erred in giving in a modified form an instruction requested by defendant. The instruction as requested reads: "I instruct you that before you can find the defendant guilty of the crime charged in the information, the prosecution must establish beyond a reasonable doubt that the defendant operated a motor vehicle, to wit, an automobile, upon North Los Angeles Street, in the city of Anaheim, California, and that he was under the influence of intoxicating liquor at the time that he operated said automobile; and if there is a reasonable doubt in your mind as to whether or not he was under the influence of intoxicating liquor at the time he operated the automobile from in front of the grill to the place where he was arrested, you should give him the benefit of that doubt and acquit him." The portion of the proposed instruction which we have italicized was stricken out by the court. Appellant has not made his position very clear. If we correctly understand him, his point is this: Because, forsooth, the arresting officer saw the defendant drive his car only from the spot where it had been left in front of the Liberty Grill to the place where the arrest was made, which is but a very short distance, defendant should not be convicted unless it were proven, beyond a reasonable doubt, that he was under the influence of liquor while driving his car along that short stretch of North Los Angeles Street. The information charges defendant with having driven his automobile "upon a public highway in the county  {Page 56 Cal.App. 454}  of Orange, to wit, North Los Angeles Street, in the city of Anaheim," while under the influence of intoxicating liquor. The witness who testified that his car was crowded to the curb by defendant's automobile testified that on the evening in question the defendant, when the witness saw him, was driving northerly on North Los Angeles Street. Clearly, the part of the instruction that was stricken out by the court was an unwarranted attempt to place an undue limitation upon the right of the prosecution to demand a conviction as charged in the information.

   The judgment is affirmed.

   Works, J., and Craig, J., concurred.   

19341107 - People v. Lewis

People v. Lewis (1934) 4 Cal.App.2d Supp. 775

 

[Appellate Department, Superior Court, County of Los Angeles.

 

Crim. A. No. 1124.

 

November 7, 1934.]

 

THE PEOPLE, Respondent, v. PAUL J. LEWIS, Appellant.

 

COUNSEL

 

Chris Wilson for Appellant.

 

John K. Hull, City Prosecutor, and Fred N. Howser, Deputy City Prosecutor, for Respondent.

 

OPINION

 

Shaw, P. J.

 

By count I of the complaint the defendant was charged with violation of section 367d of the Penal Code, which provides that "any person operating or driving an automobile, motorcycle or other motor vehicle who becomes or is intoxicated while so engaged in operating or driving such automobile, motorcycle or other motor vehicle shall be guilty of a misdemeanor." This section was adopted in 1911 and has not since been amended.

 

In 1913 an act designated as the "motor vehicle act" was passed, section 17 of which provided that "no intoxicated {Page 4 Cal.App.2d Supp. 777} person shall operate or drive a motor or other vehicle upon any public highway within this state." (Stats. 1913, p. 646.) In 1915 this act was repealed, and another act designated as the "Vehicle Act" was passed, which contained a section 17 identical with that just quoted from the act of 1913. (Stats. 1915, p. 406.) Section 17 of the act of 1915 was amended in 1917. (Stats. 1917, p. 400.) By these acts the violation of the provisions referred to was made a misdemeanor. In 1919 section 17 of the act of 1915 was again amended to provide that "no person who is under the influence of intoxicating liquor ... shall operate or drive a motor or other vehicle on any public highway within this state", and to make a violation of this provision punishable by either a fine or imprisonment in the county jail or the state prison. (Stats. 1919, p. 214.) In 1923 the act of 1915 and its amendments were repealed and a new act known as the "California Vehicle Act" was passed. (Stats. 1923, p. 517.) Section 112 of this act was substantially the same as the 1919 amendment of section 17 of the act of 1915, both as to substance and penalty. In 1929 the prohibitory provision of section 112 of this act was amended to read in part, "It shall be unlawful for any person ... who is under the influence of intoxicating liquor ... to drive a vehicle on any public highway within this state", and the penalty was left as before, that is, either fine or imprisonment in county jail or state prison. (Stats. 1929, p. 537.) No further amendments have been made.

 

[1] Thus it appears that all these provisions of the various vehicle acts are subsequent in point of time to section 367d of the Penal Code. It is also obvious that the former overlap the latter, both sets of provisions covering the driving of a motor vehicle on a public highway. The Penal Code section makes it unlawful for any person doing such driving to be intoxicated while doing so, and the present provision of the California Vehicle Act, like its immediate predecessors, makes it unlawful for any person who is under the influence of intoxicating liquor to do such driving. The phrase, "under the influence of intoxicating liquor", as used in the vehicle acts, is synonymous with the word "intoxicated" used in the Penal Code section. (See People v. Dingle, 56 Cal.App. 445, 452, 453 [205 P. 705]; People v. Ekstromer, 71 Cal.App. 239, 244, 245 [235 P. 69]; People v. McKee, 80 Cal.App. 200, 205 [251 P. 675].) {Page 4 Cal.App.2d Supp. 778} There is no substantial difference between these two provisions. The fact that one of them makes it unlawful for an intoxicated person to drive, while the other forbids a driver to be intoxicated, affords no basis for any distinction between them. By both of them the concurrence of intoxication with the driving of a motor vehicle on a public highway makes out the offense.

 

In view of what we have just said, certain well-established rules make it clear that section 367d of the Penal Code can no longer be regarded as in force except in regard to offenses not covered by the vehicle acts, such as the driving of a motor vehicle on private ground by one who is intoxicated.

 

[2] Where two legislative enactments punish exactly the same act they are in conflict. (People v. Schuster, 122 Cal.App. Supp. 790, 793 [10 PaCal.2d 204]; Ex parte Stephen, 114 Cal. 278, 282 [46 P. 8 In re Murphy, 190 Cal. 286, 290 [212 30]; In re Mingo, 190 Cal. 769, 771 [214 P. 850].) Where two statutory provisions are in irreconcil conflict, the one latest in point of time will control. (Beneficial Loan Soc., Ltd., v. Haight, 215 Cal. 506, 512 [11 PaCal.2d 857]; Crooks v. People's Finance & Thrift Co., 111 Cal.App. Supp. 769, 773 [29 1065]; People v. Schuster, supra.) A later statute prescribing a different punishment for an offense works a repeal of the former one by implication. (People v. Tisdale, 57 Cal. 104.)

 

This question appears never to have received consideration from any of the higher courts of this state. In People v. Collins, 195 Cal. 325, 344 et seq. [233 P. 97], People v. Lloyd, 97 Cal.App. 664, 670 [275 P. 1010], and People v. Aguilar, 140 Cal.App. 87 [35 PaCal.2d 137, 141], reference was made to the Penal Code section and to one or more of the vehicle act sections above cited, but no opinion was expressed regarding their effect on each other. In re Quitman, 116 Cal.App. 59 [2 PaCal.2d 41], held, on habeas corpus, that a commitment issued under section 367d of the Penal Code, presumably in 1931, that being the year of the decision, was valid. However, the opinion makes no reference to section 112 of the vehicle act, nor does it show that the question now before us was either raised or considered. For all that appears the complaint on which the commitment there was based may have charged some offense committed on private property and therefore still within {Page 4 Cal.App.2d Supp. 779} the reach of section 367d. We cannot regard that case as authority against our conclusion.

 

[3] The complaint in the present case does not show whether the offense charged occurred on a public highway. The great majority of such offenses are committed there, and we do not think the provision of the vehicle act should be regarded as a mere exception to the Penal Code section, so as to uphold a complaint which does not state the place of the offense and cast on the defendant the burden of proving that his acts occurred on a public highway. The tail should not be expected so to wag the dog. Moreover, the evidence shows that the acts complained of in this case did occur on a public highway and hence could be prosecuted only under the vehicle act.

 

[4, 5] The complaint does not charge an offense under that act, and if we could overlook this deficiency, in view of the sufficiency of the evidence to prove such an offense, we would be confronted with the difficulty that by reason of the imprisonment in the state prison which is a possible penalty for violation of section 112, every such violation stands as a felony for every purpose up to judgment and must be prosecuted as a felony. (People v. War, 20 Cal. 117, 120; People v. Collins, 195 Cal. 325, 347 [233 P. 97]; Doble v. Superior Court, 197 Cal. 556, 577 [241 P. 852]; Morris v. Moore, 61 Cal.App. 314, 320 [214 P. 995].) Consequently this offense cannot be prosecuted in the municipal court, which has no felony jurisdiction, but is limited in criminal cases to misdemeanors.

 

[6] The charge in count II is a violation of section 121, of the vehicle act, commonly called reckless driving. We have examined the evidence, and while it is conflicting, that given in behalf of the prosecution, with the possible inferences therefrom, is sufficient to uphold the verdict on this count.

 

The judgment on count I is reversed and the cause is remanded to the municipal court with directions to dismiss said count. The judgment on count II is modified by striking therefrom the provision that "sentence on count II to commence upon the expiration of sentence imposed this day on count I" and as so modified it is affirmed.

 

Bishop. J., and Fox, J., concurred.

See not approved in People v. Haeussler (1953) 41 Cal.2d 252

19341115 - People v. Wallace

People v. Wallace (1934) 2 Cal.App.2d 238

[Crim. No. 2549.

 

Second Appellate District, Division One.

 

November 15, 1934.]

 

THE PEOPLE, Respondent, v. CLIFFORD F. WALLACE, Appellant.

 

COUNSEL

 

Ben W. McLendon and Jarrett Beckett for Appellant.

 

U.S. Webb, Attorney-General, and William F. Cleary, Deputy Attorney-General, for Respondent.

 

OPINION

 

The Court.

 

Defendant appeals from a judgment of conviction that was rendered against him pursuant to three several verdicts returned by a jury for the commission by him of the respective crimes of murder in the second degree, violation of section 112 of the California Vehicle Act relating to the driving of an automobile while the driver thereof is under the influence of intoxicating liquor, and violation of section 141 of the same act, which in part relates to the failure of the driver of an automobile that has been involved in an accident caused by the collision of such automobile with an individual to stop his automobile and give aid, etc., to any person injured in such accident. Defendant also appeals from an order by which his motion for a new trial was denied.

 

It is contended by respondent that, as is indicated by the judgment from which the appeal is taken, the defendant while in an intoxicated condition drove and operated an automobile in such manner that it collided with one Guy Kennon, from the effects of which collision Kennon immediately died, and that after the happening of such accident defendant did not stop his automobile and render aid to said Kennon, etc.

 

Appellant questions the legality of each of the three verdicts returned by the jury against him, and especially attacks the judgment because of the asserted insufficiency of the evidence to support each of such verdicts.

 

[1] Although by statutory provision, in order to constitute the crime of murder in the second degree, "malice aforethought" must be present in the mind of the killer of a human being (sec. 187, Pen. Code), the existence of such a condition may be implied "when the circumstances attending the killing show an abandoned and malignant heart" (sec. 188, Pen. Code). And it has been held that where the killing has arisen from, or in the course of, the commission by the accused of a criminal offense amounting {Page 2 Cal.App.2d 241} to a felony (even other than those felonies specified in section 189 of the Penal Code which relate more particularly to the crime of murder in the first degree), a verdict of murder in the second degree may be sustained. (People v. McIntyre, 213 Cal. 50 [1 PaCal.2d 443]; People v. Hubbard, 64 Cal.App. 27 [220 P. 315]; People v. Collins, 195 Cal. 325 [233 P. 97]; 13 Cal.Jur. 603.)

 

[2] By the terms of section 17 of the Penal Code, it is provided that "a felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime, punishable by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison."

 

After denouncing the act of driving an automobile on any public highway within the state by one "who is under the influence of intoxicating liquor", section 112 of the California Vehicle Act provides for the punishment that may be imposed upon one who has been convicted of a violation of such statute, and which punishment, dependent entirely upon the "recommendation" to be made by the jury, may be either a fine, an imprisonment in a county jail, or an imprisonment in the state prison. In the instant case the jury returned its verdict by which defendant was found guilty of "violation of section 112, California Vehicle Act"; and recommended as punishment "one year in state prison". It would therefore appear that by reason of the determination by the jury, in effect that at the time when the accident occurred which resulted in the death of Guy Kennon, defendant was engaged in the commission of a felony, a sufficient foundation in law was created which would authorize a contemporaneous verdict against defendant of murder in the second degree. [3] But with reference to the alleged violation by defendant of the provisions of section 112 of the California Vehicle Act, which relate to the accusation that at a time when he was under the influence of intoxicating liquor defendant drove an automobile on a public highway of this state,--as a separate and controlling subject for consideration by this court, appellant challenges the sufficiency of the evidence adduced on the trial of the action to warrant the verdict of his guilt thereof. {Page 2 Cal.App.2d 242}

 

Even though we might concede that in point of law, the evidence is sufficient to support a finding that the defendant is guilty of the several offenses (and as to this we express no opinion), yet such evidence is not so clear and undisputed that we may ignore those errors committed by the court in relation to instructions to the jury,--which errors we shall now discuss.

 

[4] At the conclusion of the trial the jury was instructed by the court that: "You are instructed that any person, who, while driving an automobile under the influence of intoxicating liquor, as defined to you in these instructions, causes the death of any other person, is guilty of the crime of murder of the second degree."

 

Although other instructions were also given to the jury by which a verdict of manslaughter was authorized, such instructions were predicated, not upon the presumed fact that "while under the influence of intoxicating liquor" defendant had operated an automobile "on a public highway of this state", but were based entirely upon a part of the statutory definition of manslaughter included within section 192 of the Penal Code: that is to say, the unlawful killing of a human being without malice, and without due care and circumspection. That such a distinction clearly exists is pointed out in the case of People v. McGrath, 94 Cal.App. 520, 525 [271 P. 549], where it is said: "On the other hand, evidence of indulgence in intoxicating liquor is wholly unessential to the establishment of the crime of reckless driving, as it is defined by section 121 of said act; that is, a person may be guilty of driving without due caution and circumspection, or in such manner as to endanger the safety of others, even though he has not indulged at all in intoxicating liquors. The two crimes are therefore not only distinct in law but in fact, for each crime pertains to a separate state of facts." But no evidence whatsoever was introduced by the prosecution that would authorize the giving of such an instruction on the assumption that at the time when the accident occurred defendant was not operating his automobile with due care and circumspection. In that regard, the only evidence presented was that offered in behalf of defendant, and which was entirely to the contrary of such theory. A consideration of the terms of the instruction quoted herein will at once disclose the situation that the {Page 2 Cal.App.2d 243} jury was thereby told that if it found that, while under the influence of intoxicating liquor, defendant had driven his automobile on a public highway of this state, and thus had caused the death of Guy Kennon, there could be but one verdict,--"murder of the second degree". Leaving out of consideration the fact that no evidence was presented as to the exact manner in which Guy Kennon met his death; that is to say, in general, whether his death was the result either of his own voluntary or his own involuntary act, or conduct; or specifically, whether on his part his death was accidental, or by design; or whether on the part of defendant the accident was due to his negligence;--from an examination of the case of People v. Collins, 195 Cal. 325, 349 [233 P. 97], it becomes manifest that in a situation such as is presented herein a jury is authorized to return a verdict of "guilty of the crime of manslaughter", and consequently that in the instant case the instruction to the jury by which it was limited in its verdict either to an acquittal of defendant, or to a finding of "guilty of the crime of murder of the second degree", was prejudicially erroneous.

 

[5] As to the third count of the information upon which defendant was convicted, and from the ensuing judgment whereon he has appealed to this court, to wit, that of failure to stop his automobile and give aid, etc.,--appellant complains of the refusal of the trial court, following defendant's request therefor, to give to the jury the following instruction:

 

"The defendant is charged in count three of the information filed in this cause with violation of section 141 of the California Vehicle Act. I instruct you that the said vehicle act imposes a duty upon the driver of any vehicle involved in an accident which results in injury or death to any person to immediately stop, render reasonable assistance to any person injured and furnish to the person struck certain information required by law. However, I further instruct you that this does not apply to a person who was ignorant of the fact, that the automobile he was driving had struck another person, and if you believe from the evidence in this case that the defendant's auto collided with the deceased and that the defendant was unaware of such fact, he would not be guilty of a violation of the law and it is your duty to acquit him of said charge." {Page 2 Cal.App.2d 244}

 

That in circumstances such as were present in the instant case an instruction to the effect of that herein quoted is proper, and on request of the defendant in the action should be given to the jury, is attested by the decisions in the cases of People v. Scofield, 203 Cal. 703, 711 [265 P. 914]; People v. Graves, 74 Cal.App. 415 [240 P. 1019]. See, also, People v. Leutholtz, 102 Cal.App. 493 [283 P. 292]. Respondent concedes as much, even though (as respondent contends) "the instruction was covered in substance" by another instruction that was given to the jury.

 

The impressive point of the refused instruction was that if defendant was "ignorant of the fact that the automobile he was driving had struck another person", a verdict of guilty could not lawfully be rendered against him. Although it may be that by the instruction which was given to the jury it was informed in a general roundabout way that before defendant could be convicted of the offense, the evidence must show beyond a reasonable doubt that at the time the accident occurred he must have been aware of that fact,--since his positive knowledge thereof is an essential element of the offense, we think that defendant was entitled to have given to the jury a specific instruction on the point such as was requested by him. But even though the jury had been adequately instructed in that regard, an examination of the record herein fails to show that defendant necessarily should be held to have had the required knowledge of the fact that his automobile had struck any person, or had been "involved in an accident". To the contrary, the evidence leans heavily to the opposite conclusion.

 

[6] While we have not found any error in the rulings of the court in relation to the prosecution on the second count, we are of the opinion that the evidence thereon is so connected and commingled with the evidence relating to the charge of murder, that the granting of a new trial on the first and third counts necessarily carries with it the right to a retrial of the entire case.

 

It therefore should follow that, as to each of the counts on which defendant was convicted, the judgment rendered against him should be reversed; furthermore, that the order by which defendant was denied a new trial should be reversed. It is so ordered.

19341215 - Tracy v. Brecht

Tracy v. Brecht (1934) 3 Cal.App.2d 105

[Civ. No. 5221.

 

Third Appellate District.

 

December 15, 1934.]

 

STELLA TRACY, Respondent, v. NETTIE BRECHT et al., Appellants.

 

COUNSEL

 

Inman & West for Appellants.

 

John M. Welsh and Butler, Van Dyke & Harris for Respondent.

 

OPINION

 

Plummer, J.

 

The plaintiff had judgment against the defendants in the sum of $6,500, for and on account of personal injuries, hospitalization expenses and doctors' fees, suffered and necessitated by reason of a certain automobile collision between a car driven by the defendant, Nettie Brecht, in which the plaintiff was riding as a guest, and an automobile driven by a Mr. McCuen. From this judgment the defendants appeal.

 

The complaint, after alleging the existence of certain public highways and streets in the city of Sacramento, the {Page 3 Cal.App.2d 107} fact of the defendant, Nettie Brecht, being the driver of a Hudson sedan automobile in which the plaintiff was riding as a guest, and setting forth the fact of the collision to which we have referred as occurring on the twenty-sixth day of September, 1933, at about the hour of 3 P. M. of said day, contains the following:

 

"That at said time and place said defendant, Nettie Brecht, was then and there driving and operating said automobile while under the influence of intoxicating liquors, and while in an intoxicated condition; that as said automobile in which plaintiff was riding, as aforesaid, and which was then and there being driven and operated by defendant, Nettie Brecht, as aforesaid, did approach and traverse the said intersection of 5th Avenue with 32nd Street, as aforesaid, said defendant, as a direct and proximate result of her said intoxicated condition, did so unlawfully and recklessly drive and operate said automobile as to cause the same to, and the same did, solely by reason thereof, strike and violently collide with a certain Studebaker automobile then and there proceeding southerly through said intersection, on 32nd Street."

 

As a second cause of action the plaintiff alleges wilful misconduct on the part of the defendant, Nettie Brecht, in the driving of said automobile. The complaint further alleges that the intoxicated condition of the defendant, Nettie Brecht, was the direct and proximate cause of the collision just referred to. The injuries to the plaintiff resulting from the collision are then set forth in detail.

 

As grounds for appeal the defendants urge that the testimony is insufficient to show that the defendant, Nettie Brecht, was intoxicated; that the findings are not supported by the evidence; that other parties should have been brought into the action; that the court erred in the admission of evidence; and that the damages awarded are excessive.

 

Without mentioning the various places at which the liquor imbibed by the defendant, Nettie Brecht, preceding the collision, was obtained, it is sufficient to state generally that the defendant, Nettie Brecht, had seven drinks; first, a bottle of home-brew, two drinks of whisky, three gin-fizzes, and finally a drink of whisky described as "terrible stuff". We may here state that none of these drinks were taken in the presence of the plaintiff. After having had six of the drinks {Page 3 Cal.App.2d 108} mentioned, the defendant, Nettie Brecht, accompanied by two other persons, drove her automobile to the residence of the plaintiff and invited the plaintiff to accompany the party, apparently for the purpose of going some place to have a dinner and then to the theater. This purpose was not very definitely explained.

 

After taking the last drink of whisky, the testimony shows the conduct of the defendant, Nettie Brecht, in driving the automobile. It appears that the automobile was driven for a number of blocks on a street in the city of Sacramento known as Franklin Boulevard. This boulevard is intersected by 5th Avenue. Franklin Boulevard, in its general course, is northerly and southerly. Fifth Avenue in its general course is easterly and westerly. Paralleling Franklin Boulevard is a certain other street known as 32nd Street. The Hudson sedan was driven for a number of blocks on Franklin Boulevard, turned into 5th Avenue, and came into collision with an automobile driven by a man named McCuen at the intersection of 5th Avenue with 32nd Street.

 

The testimony is to the effect that the defendant, Nettie Brecht, drove the Hudson sedan on Franklin Boulevard very rapidly, from 40 to 45 miles an hour; as one witness explained, between 40 and 50 miles per hour; that in driving the car the defendant, Nettie Brecht, would pull in behind cars, pull out fast, pull in behind cars again, slap on her brakes; came close to hitting a school bus in passing some cars; was asked to slow down; refused to do so, but continued to swerve out and back again in trying to pass more cars. This continued for a number of blocks. While driving on Franklin Boulevard a car driven by an acquaintance passed Mrs. Brecht, whereupon Mrs. Brecht stated that she was going to "catch it", and thereafter continued to drive rapidly until the time of the collision. The plaintiff in the action requested permission to take the wheel. Other passengers begged Mrs. Brecht to stop. The defendant, Mrs. Brecht, refused to allow the plaintiff to take the wheel, declaring that she was all right. In turning into 5th Avenue the car was driven at a speed of about 25 miles per hour, making a sweeping turn. After entering 5th Avenue the car was driven from 40 to 45 miles per hour. On Franklin Boulevard, and also on 32nd Street where it was intersected by 5th Avenue, school children were passing to and fro. On {Page 3 Cal.App.2d 109} reaching the intersection of 5th Avenue with 32nd Street, instead of slowing down she swerved her car to the right in order to avoid striking the McCuen car which was being driven in a southerly direction. The Hudson car was then being driven in an easterly direction. The sweep of the Hudson car in swinging in front of the McCuen car was not sufficiently wide, and the left rear wheel of the Hudson sedan was caught by the left front wheel or front portion of the McCuen car and upset, resulting in quite serious injuries to the plaintiff, as alleged herein. The testimony is to the effect that no attempt was made by the defendant, Nettie Brecht, to check the speed of the car in entering 32nd Street; no application was made of the brakes; and one witness testifying that the Hudson sedan at that instant was being driven between 40 and 50 miles an hour. One of the witnesses gave a higher speed than 35 miles an hour as the car was being turned from Franklin Boulevard into 5th Avenue. There is no controversy as to the drinks taken by the defendant, Nettie Brecht.

 

The testimony is also to the effect that the defendant, Nettie Brecht, after the collision, was in a very excited condition, and objected to being taken to the emergency hospital. The testimony also shows that at the time the Hudson sedan was being driven on Franklin Boulevard, the traffic was very heavy. We quote from the testimony of one witness as follows: "Q. Now, will you please describe to the court the way that Mrs. Brecht drove that car for that period, approximately twenty blocks? A. Awfully fast. She would pull in behind a car and then pull out again to pass, and when she was unable to make it, put on her brakes and pull back in again behind the other cars. There was a school bus coming along, or a P. G. & E. bus; she nearly hit that in trying to pass some cars. We asked her to not go so fast, to slow down; but it did not seem to make any difference, and even then, she would do it all over again; she would swerve back again and try to pass more cars. Q. Now, when did she start to do that? A. After we had gone about three blocks on Franklin Boulevard. Q. What happened at that time? A. A car had passed us and Mrs. Brecht became terribly excited over it, and she said, 'I am going to catch that car'; and from then on she started driving fast, and she continued to drive fast up to the time {Page 3 Cal.App.2d 110} of the accident. Q. Now, then, during this interval of 18 or 20 blocks when she was driving northerly on Franklin Boulevard, and swerving in and out of the traffic, what were you girls in the car doing? A. Begging her to stop."

 

The testimony also is to the effect that Mrs. Brecht was told to look out for the children, but that did not cause her to slacken the speed of the car that she was driving.

 

As controverting the testimony tending to show intoxication, the defendants introduced the testimony of two physicians and a police officer, to the effect that Nettie Brecht was not intoxicated. One of the physicians treated Mrs. Brecht approximately a half hour after the collision. Just how long it was after the collision the second physician had an interview with Mrs. Brecht has not been called to our attention, but we assume it was within a reasonable time.

 

[1] The objection of the defendants to the admission of testimony showing the manner in which the defendant, Nettie Brecht, drove the Hudson sedan on Franklin Boulevard seems to us clearly untenable. In Hasten v. State, 35 Ariz. 427 [280 P. 670], the court, having before it the cause of a defendant convicted of driving an automobile while under the influence of liquor, said: "There are three assignments of error. The first raises the question of the admissibility of certain evidence as to the speed at which appellant was driving when arrested. It is urged that the speed of the car has no connection with the particular offense charged. We cannot agree with this contention. It is a notorious fact that one of the first things a driver under the influence of liquor is apt to do is to drive at a high rate of speed, especially when an advanced state of intoxication has not yet been reached. Such being the case, the speed at which appellant was driving was one of the circumstances which the jury might properly consider in determining whether he was under the influence of liquor at the time."

 

That one has a collision on the highway may also be introduced to show that the driver of the car was intoxicated, as his manner of handling the car might be most pertinent. (Thomas v. State, 109 Tex. Cr. Rep. 207 [3 S.W. (2d) 807].) Likewise, evidence of the acts and conduct of a person at the time of the alleged violation of a statute prohibiting the driving of an automobile while intoxicated, is admissible. {Page 3 Cal.App.2d 111} (Stewart v. State, 108 Tex. Cr. Rep. 199 [299 S.W. 646].) See, also, State v. Griffin, 320 Mo. 288 [6 S.W. (2d) 866].

 

Without lengthening this opinion by citation of authorities, we may call attention to the notes in 68 A.L.R. beginning on page 362, also notes in 49 A.L.R. beginning on page 1395. Also, to the notes in 42 A.L.R. beginning on page 1506. The cases collected in the notes show that testimony as to the number of drinks of intoxicating liquor taken by the person involved, and his acts and conduct from the beginning of the drinking until the collision of the cars, may be introduced in evidence, and taken into consideration for the purpose of determining whether the one involved was or was not driving an automobile while in an intoxicated condition. Also, as to whether the person involved was only under what is called the "influence of intoxicating liquor".

 

[2] The principal contention of the appellants is that the act of Nettie Brecht at most comes only under the prohibiting provisions of section 112 of the California Vehicle Act, and not under the provisions of section 141 3/4 of the same act, permitting recovery for injuries suffered by a guest resulting from the intoxication or wilful misconduct of the driver of the automobile in which the guest is riding.

 

We do not question that the decisions in many states, as in California, draw a distinction, or a line of demarkation between the terms "under the influence of intoxicating liquor" and "intoxication". Likewise, we agree with the appellants that section 112 of the California Vehicle Act has for its purpose the protection of the general public, and that section 141 3/4 of the act has for its purpose the protection of an automobile driver from unwarranted claims made by guests. This distinction alone, however, is insufficient to absolve the driver of an automobile from liability if the quantity of liquor consumed, and under the influence of which he is laboring is sufficient to produce a state of intoxication described in section 933 of "Wigmore's Work on Evidence", to wit: "Intoxication, if it is of such a degree as to deserve the name, involves a numbing of the faculties so as to affect the capacity to observe, to recollect or to communicate."

 

A further definition of what is meant by "intoxication" may be found in 33 California Jurisprudence, page 479, note 32, as follows: "There are degrees of intoxication varying {Page 3 Cal.App.2d 112} all the way from slight stimulation to complete coma. It is only at some point along the line between the two extremes that the loss of control of the mental faculties occurs. (State v. Yates, 132 Iowa, 475 [109 N.W. 1005].) In order for a person to be intoxicated, it is not necessary for him to be so much under the influence of intoxicating liquor as to be mentally and physically incapable of taking care of himself. (Yazoo & M. V. R. Co. v. Davidson, 106 Miss. 108 [63 So. 340].)"

 

Practically all of the cases called to our attention have had to deal with the question of whether the person involved was under the influence of intoxicating liquor, and not whether the person was intoxicated. However, the language of the court in the case of People v. Dingle, 56 Cal.App. 445 [205 P. 705], relied upon by the appellants, where the court instructed the jury as to what constituted being under the influence of intoxicating liquor, is as follows: "The statute does not say that no person shall operate or drive a motor vehicle on the public highway while intoxicated, but that no person shall operate or drive such a vehicle on the public highway while under the influence of intoxicating liquor. The instruction, therefore, very properly does not undertake to define intoxication, but does state what acts and what condition will justify a finding that the accused is under the influence of intoxicating liquor within the meaning of the statute. It is probably true, however, that the phrase 'under the influence of intoxicating liquor' is substantially, and to all practical intents and purposes, synonymous with such words as 'intoxication' and 'drunkenness'. But even so, the instruction gives a good definition of 'intoxication'. In St. Louis etc. Ry. Co. v. Waters, 105 Ark. 619 [152 S.W. 137], the Arkansas Supreme Court defined 'intoxication' or 'drunkenness' substantially in accord with the definition given in this instruction. In that case the court said: 'A man may be said to be drunk whenever he is under the influence of intoxicating liquor' to the extent that they affect his acts or conduct so that persons coming in contact with him could readily see and know that the intoxicating liquors were affecting him in that respect."

 

[3] In nearly all of the definitions which have come under observation as to whether one is under the influence of intoxicating liquor, or is intoxicated, the question is {Page 3 Cal.App.2d 113} whether the person involved is so far under the influence of intoxicating liquor, or has reached such a degree of intoxication that his ability to operate a car in the manner that an ordinarily prudent and cautious person in full possession of his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions. If the faculties of the person involved are so far affected, stimulated or stupefied that he is not able to appreciate the hazard involved by the manner in which the automobile is being driven, or the imminent dangers arising from cutting in and out, fast driving and quick stopping, on a street where the traffic is heavy and school children are passing to and fro, the conclusion that such a person is so far under the influence of intoxicating liquor as to have reached a degree of intoxication required by section 141 3/4 of the California Vehicle Act, is sufficiently supported.

 

In Lockhart v. State, 108 Tex. Cr. Rep. 597 [1 S.W. (2d) 894], an instruction to the effect that a person was intoxicated where a sufficient quantity of intoxicating liquor had been taken into the stomach to deprive him of normal control, was upheld.

 

In State v. Graham, 176 Minn. 164 [222 N.W. 909], in dealing with the question of the influence of intoxicating liquor, it is said: "When a person is so affected by intoxicating liquor as not to possess that clearness of intellect and control of himself that he otherwise would have, he is under the influence of intoxicating liquor within the meaning of that term as used in the statute prohibiting the operation of vehicles while in such condition."

 

In Daniels v. State, 155 Tenn. 549 [296 S.W. 20], the court said: "The phrases 'under the influence of an intoxicant', and 'while in a drunken, or partly drunken condition' mean substantially the same thing, and are used synonymously in the statute."

 

The appellants call our attention to the case of Tomlinson v. Kiramidjian, 133 Cal.App. 418 [24 PaCal.2d 559], where the court said: "From evidence that a person had been drinking intoxicating liquor, and thereafter drives his car in a negligent manner, it does not follow as a matter of law that he was driving while under the influence of intoxicating liquor." We readily agree with this statement but an examination of this case shows that testimony was {Page 3 Cal.App.2d 114} admitted very similar to the testimony in this case as to the manner in which the defendant was driving his car. It also appears from the opinion that the jury found in favor of the plaintiff, and the action of the trial court in setting aside the verdict and directing judgment be entered for the defendant, was reversed by the appellate court.

 

[4] In this case, just as in the case which we have been considering, it was for the trial court to determine the degree of intoxication under which the defendant, Nettie Brecht, was laboring at the time of driving the car on Franklin Boulevard and 5th Avenue, and at the instant of the collision. The court found as follows: "That it is true that at said time and place said defendant, Nettie Brecht, was then and there driving and operating said automobile while under the influence of intoxicating liquor and while in an intoxicated condition", etc.

 

The finding is not ambiguous. The defendant, Nettie Brecht, could not be intoxicated to any degree without also being under the influence of intoxicating liquor. As to whether the witnesses testifying for the plaintiff, detailing the number and kind of drinks which the defendant, Nettie Brecht, had imbibed, and her manner of driving the car on the respective streets, and her actions after the collision, satisfied the court that she was driving her car while in an intoxicated condition, was a question of fact for the court to determine, and as the court so found from the facts and circumstances set forth in the transcript and summarized herein, we are bound by such finding even though two physicians and a police officer testified that in their opinion Nettie Brecht was not intoxicated. The record contains no explanation of what degree of influence produced by intoxicating liquors must be observed before creating what such witnesses would call "an intoxicated condition". The decision of the trial court, with all the circumstances and conditions before it, is not only more persuasive as to its correctness than the opinions of three witnesses who failed to observe that the defendant, Nettie Brecht, was in what they would call "an intoxicated condition", but also precludes this court from holding the contrary.

 

[5] The appellants further urge that F. N. McCuen, the driver of the car with which the car driven by the defendant, Nettie Brecht, came in collission, should have been {Page 3 Cal.App.2d 115} brought into the action. There is no merit in this contention. If it be assumed that both McCuen and Nettie Brecht were tort-feasors, the plaintiff would still have the privilege of electing to bring suit against one of them, and not as against both. This cause of action, however, is different from one against tort-feasors, where a plaintiff may very properly bring in two or more defendants. The action in the instant case involves the question of the intoxication of the defendant, Nettie Brecht, and not simply her negligence. The action against McCuen, so far as the record discloses, would have been against him only on the ground of negligence.

 

The cases cited by the appellants show, and it is not disputed, that where the action of two or more persons united in producing an injury, all of such persons may properly be brought in as defendants, but even under such circumstances, the joining of all of the persons guilty of negligence is not necessary as the plaintiff may still elect to institute suit against one only. This is for the reason that one is not relieved of his own wrong by reason of others being also guilty of a like wrong.

 

[6] It is finally contended that the damages awarded are excessive. The hospital expenses, doctors' fees, etc., amounted to the sum of $650. The remainder of the award was allowed on account of personal injuries. The injuries suffered by the plaintiff are clearly set down in the respondent's brief, which we have verified by an examination of the record, and for convenience, incorporated the same herein, to wit: "When the car turned on its side her arm stuck out and was caught between the pavement and the car, the car skidding along with her arm in that position; that her knuckles were cut off, leaving a scar, her forehead cut, her eye blackened, and one arm broken; that her legs and back were bruised so that she was unable to walk; that after she left the hospital she was able to walk a little, but not very good, and that her injuries still bothered her when she bent over; that the pain still persisted; that since the injury her nerves had been unsettled; that she could not drive a car in traffic, and so when she reached the boulevard she had to take a street car and leave her car there; that Dr. Binkley at first attempted to set her arm, and she was then taken to Dr. Anderson, who attempted it, and that she {Page 3 Cal.App.2d 116} ultimately went to Dr. Fabian; that he had to reduce the swelling and prepare the skin, which took a week, and that her arm had to be dressed once or twice a day for the burns, which were very painful; that after a week an open reduction was performed, under anaesthetic, and a cast placed on her arm for about three weeks; that she still had not the full use of her arm, and sometimes was not able to hold anything she attempted to pick up; that she could lift things one way, but seemed to lack the strength to exert force in other directions; that sometimes her arm seemed to come unjointed in the elbow, and she would have to work it back and forth to get it back again."

 

This summary shows that we cannot hold the judgment excessive.

 

The count in the complaint based upon wilful misconduct having been dismissed, even though the record may show sufficient to justify a finding supporting such a count, we are not under the necessity of reviewing the testimony in the light of that count.

 

The judgment is affirmed.

 

Pullen, P. J., and Thompson, J., concurred.

19341221 - People v. Carr

People v. Carr (1934) 3 Cal.App.2d 275

[Crim. No. 2611.

 

Second Appellate District, Division One.

 

December 21, 1934.]

 

THE PEOPLE, Respondent, v. HAROLD E. CARR, Appellant.

 

COUNSEL

 

Gladys Towles Root for Appellant.

 

U.S. Webb, Attorney-General, and Bayard Rhone, Deputy Attorney-General, for Respondent.

 

OPINION

 

Hahn, J., pro tem.

 

Defendant was informed against, and after trial by jury, found guilty of three offenses: manslaughter; violation of section 141 of the California Vehicle Act, failing to stop and render aid; and violation of section 112 of the California Vehicle Act, driving an automobile while under the influence of intoxicating liquor.

 

[1] In support of his appeal, appellant urges that the evidence is insufficient to support any one of the several verdicts, and also that the court committed error in refusing to give certain instructions requested by him.

 

A reading of the transcript convinces us that there is abundant evidence in the record to support the verdict and judgment as to each count.

 

[2] Nor is there merit in the contention that the court erred in refusing to give the instructions referred to. The instructions which the court gave to the jury sufficiently covered the subjects referred to in the refused instructions.

 

The judgment and order appealed from are affirmed.

 

Houser, Acting P. J., and York, J., concurred.