91 Pa. Super. 17 | Pa. Super. Ct. | 1927
Argued March 14, 1927. Appellant was summarily convicted by the Burgess of the Borough of Ingram of a violation of Section 20 of the Act of June 30, 1919, P.L. 678, relating to and regulating the use of motor vehicles, et cetera, as amended by the Act of April 27, 1925, P.L. 254, 272. An appeal was allowed by the County Court of Allegheny County, which court, after hearing all the evidence offered on behalf of the Commonwealth and of the defendant, adjudged him "guilty of the offense of driving without proper lights as required by law" and imposed a fine and costs. Defendant's motion for a *19 new trial was heard by three judges of the court below and a new trial refused in an opinion filed December 29, 1926. On January 19, 1927, defendant took this appeal and the court below entered an order making it a supersedeas. It was agreed by counsel to print all the testimony taken in the case. The transcript of the testimony is certified by the official reporter but we do not find in the record as printed by appellant the certificate of the trial judge required by Section 4 of the Act of May 11, 1911, P.L. 279.
At the trial it was not controverted that appellant, about nine o'clock at night, was driving a motor vehicle, without lighted head lights but having lighted side lights on opposite sides thereof, along Prospect Avenue toward the intersection of that street with Ingram Avenue in the Borough of Ingram. Counsel for appellant contended (and we think correctly) that the issue was one of fact, namely, whether the public highway along which he was driving was at the time of the alleged violation "so lighted as to render any substantial object clearly discernible at a distance of two hundred feet." The applicable provision of the act reads "when any motor vehicle or motorcycle is in motion on a public highway not so lighted as to render any substantial object clearly discernible at a distance of two hundred (200) feet it shall show headlights or a headlight in conformity with this section." The evidence with respect to the extent to which the street in question was then lighted was conflicting. Two witnesses for the Commonwealth testified that the highway upon which the defendant was driving, admittedly without showing head lights, was not so lighted as to render a substantial object clearly discernible at a distance of two hundred feet and the defendant and two witnesses called by him testified that it was so lighted. Under this conflicting evidence the trial judge found against the defendant. A different conclusion could have been *20
drawn from the evidence but there was competent and relevant evidence to support the finding. Such being the case, an appellate court will not go into an examination of the credibility of the witnesses and the contradictions in their testimony: Eichman v. Hersker, App.,
The assignments of error are based upon the refusal of a new trial and repeat, in substance, the reasons urged in the court below and charge particularly that the official stenographic record of the trial is so incorrect and erroneous that the defendant has been deprived of the right to have his case properly reviewed by this court. Appellant cannot thus impeach the record. If the transcript of the evidence does not comport with the occurrences at the trial counsel for appellant has mistaken his remedy. By the 4th Section of the Act of 1911, supra, an effective method is provided for making the transcript of the stenographer "comport with the occurrences at the trial" when, as *22
here, it is alleged that the transcript does not correctly state what occurred at the trial. This record is not in a satisfactory condition. As stated, there is no certificate of the trial judge approving the transcript and directing it to be filed, but there is the statement we have quoted from the opinion of the court below to the effect that the record is substantially correct. No motion to quash the appeal was made by the appellee, nor was there a suggestion of certiorari sur diminution of record in behalf of appellant. We are not to be understood as saying that the statement in the opinion of the lower court supplies the lack of a formal certificate, but, under all the circumstances of this case, we may consider it as confirmatory of the substantial accuracy of the transcript. The conclusiveness of the trial judge's certificate was recognized by this court in Commonwealth v. Fitzpatrick, App.,
The assignments of error are overruled and the judgment is affirmed.