Opinion
Hearing Granted by Supreme Court Feb. 6, 1928.
Appeal from Superior Court, City and County of San Francisco; J. J. Trabucco, Judge.
Albert Campridon was convicted of violating Motor Vehicle Act, § 141, relating to an automobile driver’s duty to stop and give assistance after an accident, and he appeals. Affirmed.
COUNSEL
John V. Copren, of San Francisco, for appellant.
U.S. Webb, Atty. Gen., and Emery F. Mitchell, Deputy Atty. Gen., for the People.
OPINION
TYLER, P. J.
Appellant was accused and convicted of violating section 141 of the Motor Vehicle Act (St. 1923, p. 562). The information charged, in substance, that on or about the 21st day of January, 1926, while operating his automobile on Potrero avenue, in the city and county of San Francisco, defendant struck one Patrick Biggins, and he then and there lawfully failed and neglected to give to the person so struck his name or address, or the registration number of his automobile, or the name and address of any passenger in said vehicle, and likewise failed and omitted to render to Patrick Biggins all or any necessary or other assistance contrary to the provisions of the act. Defendant upon arraignment pleaded not guilty. Trial was had by jury on the 1st day of March, 1927, which resulted in a conviction. Thereafter a motion for a new trial was made, which was denied, and defendant was sentenced to serve 8 months in the county jail. This appeal is prosecuted from the order and judgment. It is the contention of appellant that the evidence is insufficient to justify the verdict of the jury. It is also contended that the trial court erred in permitting the complaining witness to testify as to the extent of his injuries and the length of time he was confined in a hospital in consequence thereof; and, finally, the further claim is made that the court erred in refusing defendant’s motion for a new trial. The facts, briefly stated, show that Patrick Biggins, the complaining witness, was on the morning of the day charged in the information struck by an automobile driven by defendant while he was attempting to cross Potrero avenue at Twenty-fourth street, and in consequence thereof was rendered unconscious and spent 18 weeks in a hospital with a broken leg.
A special police officer, called by the prosecution, testified that at the time in question he was proceeding in a northerly direction on Potrero avenue; that while he was crossing Twenty-Fourth street, a Ford coupédriven by defendant passed him quite suddenly and turned partly toward his machine; that he had to pull towards the curb in order to avoid being hit; that at this time he heard a dull sound and saw a man fall; that defendant’s machine came to a stop momentarily, and then proceeded; that he pursued defendant and caught up with him in a traffic jam when about 150 feet away from the accident; that defendant did not attempt to give his name to Biggins before he was brought back to the scene of the accident or the name of his companion, or render any aid or assistance to the injured man. Some four other witnesses called on behalf of the defense testified that defendant did stop, and that he returned to the scene of the accident and made no attempt to escape. Whatever conflict there may be in this evidence, it is apparent that the testimony of the police officer is sufficient to support the verdict.
It is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground of the insufficiency of the evidence to support it, it must be made clearly to appear that upon no hypothesis whatever is there substantial evidence sufficient to support the conclusion of the trial court. People v. Tom Woo, 181 Cal. 315, 184 P. 389. There is, therefore, no merit in this contention.
Nor do we think the action of the trial court in permitting the prosecuting witness to testify as to the nature of his injuries constitutes reversible error. The very purpose of the provision of the act was designed to prohibit, under pain of severe punishment, negligent or wanton drivers of vehicles from leaving persons injured by them in distress and danger for want of proper medical or surgical treatment. People v. Kaufman, 49 Cal.App. 570, 193 P. 953. The fact of injury and its extent is most material to prove the commission of the offense. Without an injury there would be no need for medical assistance.
Equally without merit is the remaining contention that the trial court erred in refusing defendant’s motion for a new trial. In support of this motion certain affidavits of two additional witnesses were offered and received in evidence. These affidavits recited that defendant did not attempt to flee after the accident. There was no showing made that defendant could not have procured the attendance of these witnesses at the trial. Moreover, the evidence set forth in the affidavit was merely cumulative, and the question as to whether or not it was sufficient to warrant the granting of a new trial was a matter addressed to the sound discretion of the trial court, and its conclusion upon the subject cannot here be disturbed in the absence of a showing of manifest abuse, and here there is no such showing. People v. Lakenan, 61 Cal.App. 368, 214 P. 1021.
Since the filing of his opening brief appellant has drawn our attention to the case of People v. Scofield (Cal.App.) 258 P. 656, wherein it is held that in a prosecution under section 141 of the Motor Vehicle Act it is incumbent upon the trial judge to instruct the jury that, in order to find an accused guilty, the members of the jury must agree upon at least one of the alternative charges pleaded; that is, that the accused 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, and this notwithstanding that defendant failed to request such instruction. A transfer has been granted in this case to the Supreme Court, and it is no longer authority on the subject. The rule has been generally recognized in this state that, where a party in a criminal case fails to ask the court to give instructions to the jury upon a particular point, he cannot complain of error on the part of the court in not giving the instructions. People v. Rogers, 163 Cal. 476, 126 P. 143.
However, irrespective of what the proper rule may be upon the subject, we do not see what possible prejudice could have resulted to defendant in the present case because of the absence of an instruction on this point. While there is evidence in the record to the effect that defendant did not give his name, address, or registration number to any one, the testimony of the police officer shows that defendant immediately drove away from the scene of the accident without rendering his victim any aid, and that he was only prevented from escaping by reason of a congestion in the traffic. This act on his part made it impossible for him to comply with the enumerated duties imposed by the statute. By immediately driving away without rendering aid he put it beyond his power to comply with the other acts, the omission of which is denounced by the statute. He therefore violated all such duties. Under such circumstances, the fact that the trial judge failed to instruct the jury that it was necessary to agree upon one of the alternative charges is immaterial.
The judgment and order are affirmed.
We concur: KNIGHT, J.; CASHIN, J.