Opinion
Hearing Granted by Supreme Court Sept. 1, 1927.
Appeal from Superior Court, San Diego County; S. M. Marsh, Judge.
R. H. Ely was convicted of failing to stop and render aid to one struck by an automobile driven by him, under Vehicle Act, § 141, and he appeals. Affirmed. COUNSEL
Honnold & Hubbell, of Esconido, for appellant.
U.S. Webb, Atty. Gen., John L. Flynn, and John D. Richer, Deputy Attys. Gen., for the People.
OPINION
THOMPSON, J.
Defendant was charged by information with failing to stop and render aid, as required by section 141 of the California Vehicle Act (Deering’s Gen. Laws 1923, p. 1852, Act 5128), to one struck by an automobile driven by defendant. A verdict of guilty was returned against him, and he appeals from the judgment pronounced thereon and from an order denying his motion for a new trial.
The essential facts are that on the evening of September 21, 1926, at about 10:30 p. m. the defendant was traveling west on University avenue, in the city of San Diego, in company with two young ladies in a red Buick roadster without a top. Miss Boatman and Miss Hill, the young ladies in the car, testified that shortly after they turned into University avenue from another street they ran over something, and Miss Boatman asked what it was, and the defendant jokingly replied, "A man on a bicycle." Miss Boatman testified that, although she had noticed a noise in the motor before the time of the accident, it became worse thereafter and when she arrived home she observed that the motor meter was broken. Both of the young ladies suggested to the defendant that he stop and investigate, to which he replied that he had seen the man pick himself up and that he could do nothing. He did not stop. The defendant admitted the remarks attributed to him by these witnesses and said that, while they had struck what he thought was a sewer drain, they had been joking all evening and he made this remark in jest, laughing about it. He said that earlier in the evening some one must have backed into him and broken his motor meter, a part of which was found at the place where the man was struck, and that they had also dented the radiator and pushed it back until the fan arms were striking against it; that this was the cause of the noise referred to by the other witnesses.
Other testimony established that a man was struck by a red roadster with its top down or off, and that on the car driven by defendant there were, in addition to the damage to the radiator and motor meter, marks on the bumper indicating that they had been made by striking corduroy clothing, such as that worn by the man who was struck and killed. Hair and pieces of thread were also found under the car on the battery box.
The appellant bases his appeal upon several grounds, the first of which is that the court erred in refusing to strike out the testimony that there were marks on the bumper such as would be made by striking clothing like that worn by the deceased. The ground urged by defendant as the reason for requesting his testimony be stricken at the time of trial was that there was no testimony to show that the bumper was not in the same condition prior to the time of the accident. Such objections run solely to the weight to be attached by the jury to the testimony, and is not a ground for its entire exclusion.
The next objection is somewhat related to the one just mentioned. During the examination of the defendant he was asked by his counsel if he had made an experiment on dusty bumpers with a piece of corduroy, and, this question being answered in the affirmative, he was asked to tell the jury what he had found out about the impression that would be made upon the bumper by corduroy "when it was pressed lightly or when it was struck a heavy blow." An objection was interposed and was sustained on the ground that the proffered testimony was incompetent, irrelevant, and immaterial. We find no error in the ruling. The testimony comes within the class of testimony designated as experiments, which, when shown to have been made under the same conditions as those existing in the case itself, are admitted. The reception or rejection of such testimony lies largely within the discretion of the trial court, with this limitation-that it must be shown that substantially the same conditions existed, and, further, that the evidence shall be of such a character as to aid rather than to confuse the minds of the jurors with collateral matters. People v. Woon Tuck Wo, 120 Cal. 294, 52 P. 833; Western S. B. Co. v. O’Brien, 49 Cal.App. 707, 194 P. 72. It is apparent that the experiment could not well have been conducted under similar conditions with those of the accident without danger of a homicide; furthermore, there was no attempt to show that the surrounding circumstances were similar.
The appellant next complains of the refusal of the trial court to give the following instruction:
"The prosecution must establish beyond a reasonable doubt that the defendant knew he had struck a person. The guilty knowledge of defendant is as material to the prosecution as any other element of the offense charged, and if you are not satisfied beyond a reasonable doubt that defendant had such knowledge you must find the defendant not guilty."
Undoubtedly such an instruction would have been proper. It cannot be asserted with any degree of seriousness that it was ever intended that a person should be convicted of failing to stop and give aid to one whom he had no reason whatever to believe had been struck by him. Yet the evidence in this case establishes the fact that the person struck died shortly after the accident; other evidence which was evidently given full weight by the jury was to the effect that the radiator of the automobile was driven back so that it came in contact with the arms of the fan, and that the motor meter was broken. It is beyond comprehension that the defendant did not know that he had struck the deceased. The jury apparently did not believe that he was joking when he made the statements to the two young ladies that he had hit a man on a bicycle. It is beyond credence that they would have convicted had they not believed (as they were fully justified by the evidence) that defendant knew he had struck a human being. As was indicated in People v. Graves, 74 Cal.App. 415, 240 P. 1019, and said in People v. McKee (Cal.App.) 251 P. 675, we cannot appreciate how the failure to give the instruction prejudiced the defendant.
The other reasons assigned for the reversal of the judgment are, in effect, that the evidence is not sufficient to sustain the verdict, and particularly in this: That uncertainty exists as to the name of the deceased, and that the circumstantial evidence is consistent with the theory of innocence. From the recital of the facts heretofore, it is patent that the jury were fully justified in coming to the conclusion arrived at by them, and we are not authorized under the circumstances to do other than abide by their determination. In so far as the name is concerned, Officer Lindsey testified that after the injury he discovered the man’s name to be Pipkin, which he later corrected to Pupkin. Under the rule announced in People v. Foster, 198 Cal. 112, 243 P. 667, the correct name of the injured person may not be of serious consequence, but, regardless of that rule, we think the name of the deceased was sufficiently supplied in the case at bar.
The judgment and order are affirmed.
We concur: WORKS, P. J.; CRAIG, J.