The defendant, Thomas Rowe Jones, appeals from a conviction for leaving the scene of a personal injury accident in violation of section 39-762, R. R. S. 1943. The assignments of error relate to the instructions to the jury and the refusal to grant a mistrial at the close of the argument to the jury.
The accident occurred at about 8:30 p.m., on June 12, 1969. Dan Curran, a boy 15 years of age, and two *304 other boys were walking south on Memorial Drive in Lincoln, Nebraska. There is no sidewalk along Memorial Drive where, the’accident happened. The boys were walking abreast with Dan on the right side walking in the street neаr the east curb.
When Dan was about 300 feet north of South Street, an automobile operated by the defendant, which was proceeding south on Memorial Drive at approximately 30 miles per hоur, struck Dan injuring him seriously. ’ The defendant did not stop at the scene of the accident ' or comply with аny of the requirements of section 39-762, R. R. S. 1943, which provides as follows: “The ' driver of any vehicle involved in an аccident upon either - á public highway, private road, or private drive, resulting in injury or death to any рerson, shall (1) immediately stop such vehicle at the scene of such accident, (2) give his name, аddress, and the registration number ' of his vehicle and exhibit his operator’s or chauffeur’s license to the person struck or the driver or occupants of "any vehicle collided with, and (3) render to any person ' injured in such accident reasonable assistance, including the carrying of such person to a physician or surgeon ' for medical or surgical treatment if it is apparent that ' such treatmеnt is necessary or is requested by the injured person. Any person violating any of the provisions of ' this seсtion shall upon conviction thereof be punished as provided in section 39-763.”
The defendant was subsequently identified as the ' driver of the automobile through police investigation.
The defendant contends that the trial court should have ' instructed as to the offense of leaving the scene of a property damage accident on the theory that it was a lesser included offense. The contention is without merit.
A lesser included offense is one which includes some ' of the elements of the crime charged without the addition of any element irrelevant to the crime charged. State v. McClarity,
The defendant admitted that he knew there had been an accident but claimed that he did not know there had been a personal injury. The evidence, however, was clearly sufficient to sustain the finding by the jury that the defendant knew there had been'a personal injury in the accident.
In instruction No. 6 the trial court advised the jury that a material element of the offense charged was that “the defendant had knowledge of such persоnal injury accident.” The defendant contends that the court should have divided the element of knowledge so that knowledge of an accident and knowledge of an injury would have been submitted as separate elements. The defendant, however, did not request that such an instruction be given.
The instruction givеn was adequate to submit the element of knowledge to the jury and was not erroneous in the absenсe of a request for a more specific instruction. See State v. Lewis,
In his closing argument the deputy county attorney referred to the: fact that a party some 200 feet from the scene of thе accident heard something which he attributed to the accident. At the close of the argument the defendant moved, unsuccessfully, for a mistrial on the ground that there was no evidentiary basis for the argument.
Pierre Beau, one of the boys who had been walking with Dan when the accident occurred, testified that after the impact he ran to a house that was “back north several yards” and “pretty far frоm the street” to call for an ambulance. Pierre also stated that the man in the house said, aftеr he had been told that there was an *306 accident: “ T thought I heard something’ ” or words to that effect.
Myron Carkoski, a police officer who investigated the accident, testified that he locatеd the point of impact by measuring from the drive to the residence located at 1840 Memorial Drive, and that the residence was approximately 200 feet from where the accident occurred.
The record shows a factual basis for the argument of the deputy county attorney. An argument which is based on evidence and inferences drawn therefrom is ordinarily not misconduct. Cramer v. State,
The judgment of the district court is affirmed.
Affirmed.