*1 9, In Bank. No. 5370. Jan. [Crim. 1953.] COSTA, PEOPLE, THE ROBERT Respondent, NORMAN Appellant. *3 Appellant. Charles A. Zeller for & Zeller and
Smith Attorney General, Strader, and Gail A. Brown, Edmund G. Attorney General, Respondent. for Deputy by convicted EDMONDS, J. Robert Norman Costa jury, a committed sitting manslaughter without court, driving of an automobile. driving morning a During early hours, Costa was Cadillac young countryside other around the with three automobile drinking and, been at one time dur- men. All of them had purchased morning, stopped and a half-case ing the Costa whisky Earlier, had three or four he consumed of beer. passengers drank some of the beer highballs. He his shortly they drove, having had two cans of it be- Costa while stipulation By parties, a chemist’s fore accident. that, showing into evidence about two report was admitted collision, had hours after the Costa’s blood an and one-half per of .12 cent. content alcoholic objection, oper- evidence was admitted that Costa’s Over conditional, although the conditions had ator’s license expired prior to the date the wreck. The conditions were drinking” not “drive while should must that Costa speed.
163 Approximately occurred, hour one-half the collision before Nicol, stopped highway patrol- Costa was Wendell a state Objections man. testimony most the officer's were over- stated, just ruled. He “I had had another violator when I (Costa).” time, first observed him At that he esti- “ mated, driving Costa was 50 and 60 miles an [b]etween along hour” a two-lane side road which intersects free- way, highway. a pursued divided four-lane The officer Costa approximately for catching up him, miles before during portion a of which distance Costa drove on the free- way a speed of per at about miles hour. When Nicol finally was enough speed able come close to clock the again Costa’s automobile it was on a side road and had per slowed to 55 miles hour. gave explanation Nicol speed.
Costa no for “just he wrong stated that he realized and that he shouldn’t doing have been that.” The officer noticed that Costa’s probationary driver’s license “was a license didn’t prosecute unfairly by want to man issuing him a cita- being tion without definite as speed to his so I reprimanded him like that for him warned that he probationary license if got and that he a citation or was in violation of the law that he would lose his license and he me that he carefully assured would drive more future, and I him released on that basis.” The odor of breath indicated that drinking, Costa had been but enough ... “not cause to be examined.” driving along Another witness who had been freeway morning on testified, objection, accident over or seven minutes about six before collision he observed traveling approximately automobile at Costa to 90 Shortly thereafter, passed miles hour. state patrol highway parked, running, car with its motor about opposite off freeway. 150 feet side of the patrol speed two officers in the ear estimated the of the Costa *4 in per hour, automobile to be of 80” miles “excess “between They immediately eighty eighty-five.” and pur- started suit, driving freeway turning across the and left follow chasing approximately police him for miles, Costa. the top speed ear a reached about miles hour. No signal given stop. was Costa to Sited, car,
Bari police pre- the driver the testified at the liminary examination, transcript the of which was admitted by stipulation. into evidence He said that the Costa auto- “passing the lane” passed mobile other to the left in vehicles kept right He returned to the lane. and then each time a mile watching “large taillights of the Cadillac” for the following pass- meanwhile in the miles, or one and one-half ing lane. police point approximately
When the had reached a car one-quarter “head- Cadillac, of a mile he could see behind the vicinity near lights up than the in the other Cadillac sharply suddenly, taillights Cadillac; he a set of divert saw roadway very manner; the abrupt off a left ... the at was there a for our vision cloud of and a second was dust “I dust, road.” He obscured from the a tree the stated: prior lights abruptly turned off not see that ’’ right ear accident; there was another to the the Cadillac. right-hand lane, traveling The other was automobile lights ones he saw veer off the but its were not the highway. explained concentrating he on He that was was on the driving and his attention focused Cadillac. cars, said, know was saw two he and “didn’t there Jeep there.” accident,
When he reached Sked the scene Officer brought stop police to a the Cadillac. car behind right-hand traveling in the lane automobile which had been pulled highway and tem- on the off shoulder porarily. However, according Sked, “due to Officer away they could got excitement of the moment before we and them.” He for his driver’s license contact asked Costa “stating it to him that it was a conditional Costa handed and “I over license.” Officer Sked stated: looked car and some beer in the back I asked noticed canned says yes couple he about and that he had a that he a little too guessed drinks and he bit fast.” patrolman highway riding with Officer Marshall, a state Lee three, triangle lights, of three Sked, “I see could testified: lane, right hand taillight in the
taillights. . . . There was This behind.” Cadillac in the center lane one before the crash the Cadillac 10 or seconds was about Cadillac, ac- lane. Then the right-hand traveling Marshal], out over” “blotted “moved cording to Officer lane “all at once in the left of the vehicle taillights” ” He said sharp in a curve. taillights went off a set of turned lane and the Cadillac the left-hand jeep knocking jeep and into and ran left-hand lane into the *5 or him, three According off the road.” to two car into elapsed between time the Costa turned seconds the and the collision. the left lane accident, jeep lay, side,
After its off the the on left the highway strip. dividing occupants in The four were the tangled George Marino, wreckage. unconscious and D.
who, it of stipulated, accident, as a result the was died lying along the left the and jeep. side of Between five ten later, objec- minutes Officer Marshall talked to him. Over tion, permitted Marshall testify Officer was to to this he jeep. conversation. Marino said had been the response question, In to the happened?” “What said, “The man hit us in the rear.” occupants
None of jeep the of the testified at trial. passengers ofOne asleep Costa’s automobile was when knowledge accident occurred hap- no of how it pened. A testimony second was not called. The third passenger, a forces, given by member of the armed depo- was sition. said sitting right-hand
This witness that he on According him, seat. speed- side back to the Cadillac registered per 90 miles shortly ometer hour before the jeep yards He first saw the about ahead of crash. them when the Cadillac was the left lane beside an- right. to automobile its He jeep other did see the lane, swerve into the left it was there when he first noticed part He “the whole Jeep” it. saw back from the up. spare Realizing tire there crash, would be a he to his friend in front called seat to duck threw him- self to the floor back. see the collision. Costa, testifying behalf, on his own said that was driv- he ing immediately about 70 or miles hour prior to the pulled he accident. He stated that over to the left lane to moving pass right slower him in vehicle ahead of lane. doing, Before so he saw no other vehicle ahead left glanced right lane. He to the left and to be certain that he was clear at momentarily an intersection then looked right see if he had clearance around the automobile passing. According he was Costa, passing “As it, up ... I looked and I saw the vehicle I hit.” It entirely lane, within the left about 60 feet in front his automobile, and an angle.” “was on He said: “It was directly front me but me was angle at an my left hit rear front left corner of it.” He tried to
apply collision, things happened his brakes before but rapidly so that he did not recall whether he was successful doing. in so appeal support judgment conviction, from the prejudicial
Costa contends that the trial court committed *6 coficerning warning of error the admission evidence given speeding morning, him for earlier in the condi- held, by tional license which he and the statement regained after he consciousness. He also claims that judgment. is to evidence insufficient sustain The attor- ney general disputes each of these contentions. provides:
The statute under which Costa was convicted “Manslaughter killing is being, the unlawful of human a driving without malice. ... 3. In the of vehicle—(a) a act, of an amounting felony the commission unlawful to gross negligence; with or in the commission of a lawful act might produce death, in manner, an unlawful and with gross negligence.” (Pen. Code, 192.3[a].) “Gross § negligence repeatedly has been defined cases California slight diligence,’ as ‘the want of ‘an exer entire failure to care, slight or the degree cise exercise of so a care to justify things the belief that there was an to indifference others,’ welfare ‘that want of care which would presumption of raise a the conscious indifference to conse ’ ” quences. (Cooper 2 Kellogg, 504, v. Cal.2d 510-511 [42 ; Scott, Barkis 34 116, ; P.2d v. 123 P.2d Cal.2d 59] [208 367] Pinyan, 226, v. 9 112 183, Weber Cal.2d 232-233 P.2d [70 ; A.L.R. Kastel Stieber, 37, v. 215 46-47 P.2d Cal. 407] [8 Rarity, Krause v. 210 474]; 644, 62, 654-655 P. Cal. [293 1327].) A.L.R. 77 therefore, question prosecution, important
An surrounding to actions, as related cir was what of mind. Was concerning his state cumstances, disclosed having high speed after con rate of at his act of dis inadvertence, or it beverages mere sumed alcoholib that, consequences ? The fact to indifference a conscious close who accident, an officer hour before the less than one-half op of his to the conditions his attention called speed driving dangers high and the license erator’s to this issue. relevant not disclose a the evidence did concedes Therefore, is little merit there of law.” violation
“previous necessarily in “must have an it argument to his However, mind of upon the Court.” flammatory effect
167 crime, if it would have previous even it to show a tended it purposes been inadmissible for the for which was intro it except duced. “It in this state that when settled merely disposition, logi shows criminal evidence which tends cally any reasonable inference to establish fact material sought for the prosecution, or fact to overcome material proved by may to be defense, although it is admissible connect the accused with an offense not included charge.” (People Woods, v. 504, P.2d Cal.2d [218 ; People Dabb, v. 491, ; 499-500 Cal.2d P.2d 981] [197 1] People Peete, 306, 924].) Cal.2d 314-315 P.2d [169
According Costa, prosecution to “The offered and there received evidence, appropriate objection over the the defendant, testimony regard extensive condi- tional license, the expired conditions which had prior the date of question.” points accident own testimony upon having erroneously cross-examination as been objection. admitted over Although thorough, hardly war- rants the use adjective admitted, “extensive.” He without objection, that his Objec- license was conditional. tion made, overruled, questions. two *7 reply to the first established his that conditional license had not been replaced by an license unrestricted at the time of the accident. question The second dealt with the conditions of his license.
If it be assumed that the admission of this evidence erroneous, was prejudicial. it was not A careful examination in entire record accordance with VI, article section of the Constitution, overwhelming discloses evidence of 4% guilt challenged exclusive of all the testimony. Under circumstances, it cannot be said that the admission of concerning evidence his conditional license resulted in a mis carriage justice of justify which would reversal of the judgment. (Const., VI, 4½; People art. Dabb, supra, v. § cf. p. 501.)
It argued that “the volunteer remark of the officer [Nicol], prior to stopping Costa he had ‘an ” other law violator’ was objection inadmissible. No made to the officer’s statement and for counsel Costa not move to strike it unresponsive as or a conclusion of any event, witness. it cannot be said this com in ment parlance common police force inwas any prejudicial. sense by Marino after he that the statement
Costa contends lapse inadmissible because regained consciousness was operation of from the five to ten minutes removed it some during gestae However, rule. this interval the res planning re not have been his was unconscious and could in mind. The sit reconstructing or the occurrence marks gestae requirements of the res uation of itself satisfied the “ part gestae, to be a of the res are rule. Declarations required point concurrent in of time precisely to be they principal fact, spring principal if trans out action, it, voluntary they explain spon if are tend to preclude it taneous, at a so near as to and are made time they regarded design, then are to be idea of deliberate (People v. contemporaneous, Ver and are admissible.” 49, 49]; Proc., 1850; non, 35 Am.Dec. Cal. Code Civ. § [95 Lines, 575, Greyhound v. 581-584 Lane Cal.2d Pacific Co., ; v. Western Pac. R. R. P.2d Showalter Cal. [160 21] 460, 895].) 2d 465-470 P.2d [106 time, raised, for the first
Upon argument, oral spontaneous that Marino’s statement the contention question Mar response in to a Officer because was made not en argument The officer did shall. This has no merit". might Marino which gage interrogation extended explain in' what latter deliberate an effort have led' the simply made the his own actions. He happened or to defend might have inquiry anyone arriving upon the scene response injured man, happened?” “What The asked the pre voluntary circumstances spontaneous and the the idea deliberation. cluded Co., supra, the state v. Western Pac. R. R. In Showalter response was made held to be admissible ment reply happen, question, world did it Joe?” “How the came from” was question as to “where the other car to a gestae the res Lane part as a held to be admissible Lines, Greyhound supra. It would be unreasonable Pacific concerning spontaneous declarations prohibit evidence inquiry *8 by simple every they prompted where are case anyone arriving natural reaction of what The occurred. such has is to make place at the where an accident occurred would, effect, inquiry. which contends The rule for Costa virtually every case gestae res doctrine bar resort to the injury. If the otherwise meets statement accidental rule, it held inadmissible gestae res should be tests of the question prompted by it was simply because another person. court, it
If be assumed that the trial discre its have tion, should not admitted Marino’s in evi statement dence, prejudicial. the error was not admits that he jeep rear, struck the from the import which is the remark made Marino. It does tend in manner to refute argument Costa’s he hit that the left rear jeep, corner rather than striking squarely. say portion
did not what jeep the rear of the was hit. final contention that the evidence is insuf support ficient judgment be cannot sustained. The conflicting, evidence is amply but is sufficient to con have vinced the trial court that guilty Costa was of gross negli gence. prove It tends to Costa, traveling speed at a approaching 90 miles hour having after consumed several drinks, pulled alcoholic out passing into the directly lane jeep behind the already which occupying space and traveling legal aat speed. rate of noticeably Without reducing speed, he rammed the smaller vehicle. Such conduct demonstrates an entire failure to exercise care and a conscious indifference consequences. judgment is affirmed.
Gibson, J.,C. Shenk, J., Traynor, J., and Spence, J., con- curred.
Sehauer, J., concurred judgment.
CARTER, J. judgment concur of affirmance and agree generally reasoning upon with the which it is based. not, however, agree portion I do with that majority opinion holds that evidence of other crimes than that charged may with is which the defendant be even admitted though may such evidence tend to connect the with defendant charged. crime No such evidence was offered this case subject and therefore the discussion on this is My dictum. position respect to the admission of evidence of other charged crimes than that with which defendant is set my forth in following dissents in People cases: Peete, v. People Cal.2d 306 P.2d Westek, 31 Cal. [169 924] 2d P.2d [190 9].
Appellant’s petition rehearing for a was denied February 5, 1953.