10 A.2d 22 | Pa. Super. Ct. | 1939
Argued October 13, 1939. Defendant was tried on three indictments in which he was charged with involuntary manslaughter, unlawful failure to stop and render assistance, and aggravated assault and battery by automobile, respectively. He was convicted of involuntary manslaughter only. His motion for a new trial having been refused and sentence imposed, he has appealed.
The assignments of error do not necessitate an elaborate statement of the facts. They relate to the charge of the court, the limitation of the cross-examination of a commonwealth witness, the refusal of a new trial, and the entering of sentence.
On January 10, 1939, about 6:40 p.m., appellant was operating an automobile south on Ridge Avenue in the city of Philadelphia. At or near the intersection of that avenue with Rector Street, which enters Ridge Avenue from the east, but which does not continue on the other side thereof, appellant's *183 automobile struck a young woman named Philomena Wilson as she was crossing Ridge Avenue, and she was killed instantly.
The charge of the court, to which practically all of appellant's argument is devoted, unquestionably gave to the jury an impression that appellant's guilt could be found if the death of the girl occurred during the commission of an unlawful act by appellant whether or not her death was the natural result or probable consequence of such act. This is a clear misapplication of the law to the facts of the case, and confusion was the inevitable result. In our judgment the evidence was sufficient to sustain appellant's conviction, and we reluctantly are obliged to reverse the judgment and grant a new trial. The conviction could be sustained at least on the ground that appellant's act or acts were not merely careless, but also so rash and reckless as to approximate unlawfulness, and that the unintended death of the girl resulted from such act or acts done in a manner which, in the mind of the law, was unlawful. Death caused by recklessly driving a motor vehicle is involuntary manslaughter (Com. v.Micuso,
The first assignment of error complains of a portion of the charge in which the trial judge said, inter alia: "There are two elements involved in the definition of involuntary manslaughter. The first element is — if a defendant commits an unlawful act and that unlawful act causes the death of a person, it is involuntary manslaughter, whether he is reckless or not. In other words, if there was an unlawful act committed, that is to say, acts contrary to law, it would make no difference whether the defendant was reckless or not." *184
The trial judge then called the jury's attention to section 1002, art. 10, of the Act of May 1, 1929, P.L. 905, as amended by the Acts of June 22, 1931, P.L. 751, § 2; July 16, 1935, P.L. 1056, § 29; June 5, 1937, P.L. 1718, § 2, 75 Pa.C.S.A. § 501, which provides certain restrictions as to the speed at which motor vehicles shall be operated upon the highway, and to section 802.1, art. 8, of the Act of May 1, 1929, P.L. 905, as amended by the Act of July 16, 1935, P.L. 1056, § 16, 75 Pa.C.S.A. § 352.1, which provides certain regulations as to the lighting equipment of motor vehicles. The Act of March 31, 1860, P.L. 382, § 79, as amended by the Act of April 11, 1929, P.L. 513, § 1, 18 Pa.C.S.A. § 2226, provides: "If any person shall be charged with involuntary manslaughter, happening in consequence of an unlawful act, it shall and may be lawful for the district attorney, with the leave of the court, to waive the felony and to proceed against and charge such person with a misdemeanor, and to give in evidence any act or acts of manslaughter, and such person, on conviction, shall be sentenced to pay a fine, not exceeding one thousand dollars, and to suffer an imprisonment not exceeding three years. . . . . . ." Appellant argues that because the amendment of 1929 merely increased the penalty for the offense although the entire section was reenacted, we must consider the crime of involuntary manslaughter as it existed in 1860, and that it cannot be predicated upon an act which was not unlawful at that time, especially an act that constitutes mere negligence. In Com. v.Gill,
The fourth assignment of error refers to that portion of the charge in which the trial judge said: "It does not make any difference if the girl, who was fatally injured, did not exercise due care; that is to say, that she did not exercise the care of a reasonably prudent person.
"Contributory negligence is a bar to recovery in a civil court. If a civil action is brought for damages resulting from injuries, there can be no recovery if the person injured was negligent or careless; in other words, that the person, himself, did not exercise the care of a reasonably prudent person. However, in a criminal case that does not make any difference, except insofar as it would tend to show that the defendant was not rash in his acts. Therefore, the mere fact that the girl may have crossed on the crossing of Rector Street, or in the middle of the block, would not make any difference insofar as it would indicate that she was careless or negligent. The only bearing it would have, as I have stated to you, is if it would tend to show an absense of rashness on the part of the defendant." In *187 view of what we said in Com. v. Williams, supra, these instructions were inadequate. Assuming for the moment that they instructed the jury sufficiently with reference to what consideration might be given the conduct of deceased as bearing upon the question of whether appellant's conduct was rash or reckless, still the instructions were erroneous because they failed to inform the jury that they might also consider the conduct of deceased as bearing upon the cause of her death, in the event that it resulted not from appellant's rashness or recklessness, but from his commission of an unlawful act. In Com.v. Williams, supra, at page 110, we said that: "The unlawful act must be something more than an attendant condition without which the death could not have occurred; that the death must be the natural result or probable consequence of the unlawful act. . . . . . A criminal statute must be strictly construed. If appellant's conviction is sustained, it would logically follow that, if deceased had intentionally thrown himself in front of appellant's automobile and had been killed, appellant would have been equally guilty of involuntary manslaughter. A construction that must lead to such a conclusion would be neither reasonable nor humane." Therefore, the jury in the instant case should have been instructed further that the conduct of the deceased should be considered on the question of whether her death was "the natural result or probable consequence of the unlawful act." The supreme difficulty of that part of the charge as quoted is that it completely fails to instruct the jury on a vital point, and permits the determination of appellant's guilt on unsupportable grounds. The fourth assignment of error is sustained.
The fifth assignment of error relates to certain portions of the charge concerning appellant's duty with reference to the lights of his automobile. The parts of the charge covered by this assignment are printed in *188
the margin.1 The same defect with respect to the element of causation as that previously discussed under the fourth assignment of error is evident therein. They convey the impression that if appellant committed the unlawful act of driving with improper lights he was guilty of involuntary manslaughter, without regard to whether the death was the natural or probable consequence of such unlawful act. Com. v. Williams,
supra. However, appellant contends also that the trial judge set up an erroneous measure of proof in placing upon him the absolute duty of driving with lights which cast a beam of at least 100 feet ahead as provided by paragraph (d) of section 802.1 of the Act of May 1, 1929, P.L. 905, as amended by the Act of July 16, 1935, P.L. 1056, § 16, *189
75 Pa.C.S.A. § 352.1 (d),2 instead of charging that appellant's duty was to operate with lights that cast a beam a safe distance ahead as required by paragraph (a), section 1032, of the Act of May 1, 1929, P.L. 905, as amended by the Act of June 29, 1937, P.L. 2329, § 16, 75 Pa.C.S.A. § 641(a). With this contention we do not agree. Nor do we think that these sections are conflicting. Section 802.1, 75 Pa.C.S.A. § 352.1, prescribes certain regulations with reference to multiple beam road lighting equipment; paragraph (d) defines the minimum intensity of all beams. If appellant was operating his automobile with lights that did not meet that standard he was committing an unlawful act. Section 1032, 75 Pa.C.S.A. § 641, regulates the use of such equipment, and requires the operator of a motor vehicle to see that his lights reveal persons and vehicles "at a safe distance in advance of the vehicle." This means that in using such lights as he is required to have by section 802.1, 75 Pa.C.S.A. § 352.1, he shall take into account all the circumstances, such as the speed of his vehicle, atmospheric conditions, etc., so that the beam he is then using shall be sufficient to disclose the presence of persons or other vehicles upon the highway in time to prevent accident. Similar language is used in expressing restrictions as to speed in paragraph (a) of section 1002 of the Act of May 1, 1929, as amended, supra, 75 Pa.C.S.A. § 501 (a): "No person shall drive any vehicle *190
upon a highway . . . . . . at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead." "It follows that the assured clear distance may be long, as on a straight road in bright daylight, or it may be shortened by storm, fog, a curve in the road or other conditions. Whatever it may be, the duty imposed upon the driver is to be able to stop the vehicle safely within that distance: Janeway v.Lafferty Bros., supra. [
Michael P. Corcoran, a witness for the Commonwealth, testified: "Q. Can you tell his Honor and the members of the Jury how fast that car was going? A. Well, I judge the car must have been going at least sixty miles an hour." The sixth assignment of error relates to a portion of the charge in which the trial judge said: "If you believe that testimony, that the defendant was operating his car at a speed of sixty miles an hour, *191
you would be warranted in finding that the defendant was unlawfully driving his car at that time and place. However, that testimony is for you to determine as to what weight should be given to it. On the other hand, if you believe that testimony, you are fully justified in reaching a conclusion that the defendant was violating the law in driving at a speed of sixty miles an hour at that point." Appellant contends that taken in connection with the charge of the court as to the "unlawful act" element of involuntary manslaughter this portion of the charge instructed them erroneously that the unlawful act could be found from the testimony of Corcoran alone. Paragraph (b) 5 of section 1002 of the Act of 1929, supra, 75 Pa.C.S.A. § 501(b) 5, provides that the speed limit for all vehicles shall be 50 miles per hour, except those otherwise restricted by said act to lower maximum speeds. Paragraph (d) of the same section, 75 Pa.C.S.A. § 501(d), we quote below.3 Accordingly, appellant argues that the jury could not be permitted to find that he committed an unlawful act in violating the speed laws unless such violation was proven as required by the statute. Where the Commonwealth relies on the fact that defendant was traveling at a speed in excess of the statutory maximum as the unlawful act upon which to base a conviction of involuntary *192
manslaughter, there is merit in this contention. Otherwise, we have a paradoxical situation where strict compliance with the statute is required (Com. v. Wolfgang,
But the Commonwealth is not to be so limited where evidence of the speed at which defendant drove his vehicle is offered to show that defendant operated it in a rash and reckless manner, and without due regard to *193
the circumstances.5 In such case any competent evidence of speed would be sufficient, and the method prescribed by the statute would not be indispensable. The trial judge could properly have told the jury that they might consider this testimony in determining whether appellant had operated his automobile in such a manner. See Com. v. Carroll,
Appellant contends also that the testimony of Corcoran had no probative value. What has been said already makes it unnecessary to consider this question at length. Appellant did not object to it or ask that it be stricken out. On cross-examination it appeared that Corcoran had never driven an automobile, but he said that he had "ridden in cars, worked in cars, worked on trucks, and [had] been on the road for years." Appellant made no further effort to test his qualifications. Non-expert opinion as to the speed of a vehicle is competent. The inexperience of the witness goes to the weight and not to the admissibility of his testimony, and its weight is for the jury. Dugan v. Arthurs,
The seventh assignment of error is overruled. Appellant was not prejudiced by the court's refusal to permit cross-examination of Officer Thistle, a Commonwealth witness, as to all the details of a written statement made by appellant to the officer, the existence of which statement was first brought out on cross-examination. All the facts sought to be elicited by the cross-examination were eventually presented to the jury.
We find no merit in the third assignment of error which complains of the use of the word "approximate" in the charge of the court. In this respect Com. v. Gill, supra, and Com. v.Matteo, supra, were followed, and consequently this assignment is overruled.
Judgment is reversed, and a new trial is granted.
"Therefore, if an operator of an automobile is driving his car when lights are required, and, the beams of the car are such that they do not reveal a person or vehicle at a distance of at least 100 feet, such operator is violating the law, and, that is an unlawful act." (180a)
"You will observe, therefore, that the beam must be such that the driver can see 100 feet ahead; that he must drive in such a manner so that he can stop within that assured clear distance, and, he must never drive more than fifty miles an hour.
"If the operator of a car violates any of these provisions he is committing an unlawful act. You will bear these principles of law in mind that I have called your attention to and apply them to the facts as they came to you from the witness stand." (181a)
"He further testified that he was driving with his lights on, which were at a low beam; that his lights threw light for a distance of fifteen or twenty feet. . . . . . .
"Is he a witness who impresses you as trying to tell the truth? That is for you to determine. If you believe his testimony that he was driving his car with a light beam that threw a light for a distance of fifteen to twenty feet, when as a matter of fact the law is that it must be a distance of at least 100 feet, you have a right to find that he was committing an unlawful act in that he was not driving with lights that threw a beam of at least 100 feet so as to observe any person or vehicle in front of him in that distance.
"If you believe that testimony, and, that he thereby committed an unlawful act, which unlawful act resulted in the death of this girl, you would be warranted in finding the defendant guilty of involuntary manslaughter." (190a, 191a)