138 A. 686 | Pa. | 1927
Argued May 9, 1927. Defendant appeals from his conviction and sentence to a prison term for the crime of voluntary manslaughter, protesting that the proofs adduced at trial did not warrant a finding of guilt of that offense.
In order to determine whether his position is well taken an exact summing up of the facts and circumstances as they appear on the record is essential so that the boundaries separating the various offenses which generically group themselves under the designation homicide may be plainly seen.
Appellant was driving a Ford coupe along Highland Avenue, a much travelled paved highway in the City of New Castle about 10 o'clock at night. This street runs north and south; his course was in the latter direction *197 and he proceeded along the proper (west) side of the avenue near the curb. Just before it reaches Leasure Avenue, an intersecting street, Highland Avenue curves to the right at an angle of 25 degrees. As he approached this swerve in the street appellant was running his car at undue speed, estimated by witnesses at from 35 to 60 miles an hour, the weight of the testimony indicating that it was at the rate of 40 to 45 miles. Defendant testified that as he approached the curve he endeavored to slow down, but that for some reason, possibly due to an accident to his car a few minutes before when he collided with an obstruction in another highway, his brakes did not work and his car did not respond to his endeavor to turn it with the curve. Instead of making the turn, it continued across Highland Avenue in a line approximately straight with that which defendant had been travelling and struck with great force an automobile which was on the opposite (east) side of the avenue in which a child, Mary Emma Gibson, was riding, the car being driven by her father. As a result of the collision she was killed.
Of what crime was defendant guilty upon this state of facts? We are of opinion that the failure of defendant to make the turn with the curve of the street was due to his excessive, negligent and unlawful speed. It unquestionably appears that he did not purposely run into the car in which the child was seated. He himself was injured in the collision. He did not know the child or any of those in the automobile with her, and his intention was to turn with the curve in the roadway; had he done so there would have been no collision. That he applied his brakes just before coming to the deflection in the street appears not alone from his own testimony, but from witnesses called by the Commonwealth, who said they heard their screeching, but his speed was so great that his car would not take the curve.
We are not disposed to hold light reins on those who recklessly speed automobiles on the highways, but we *198
think the trial judge in his own mind unduly magnified appellant's offending to his prejudice. In the opening paragraph of the charge of the court, the jury were told that the defendant was charged with the highest crime known to the law and later on were instructed that they could find him guilty of murder of the first degree (this was clearly unnecessary and prejudicial), of the second degree or of voluntary manslaughter. Under the evidence produced none of these crimes was established; the crime shown was involuntary manslaughter. Involuntary manslaughter consists in "the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty": 29 Corpus Juris, page 1148; Wharton on Homicide (3d ed.) section 211; Com. v. Micuso,
We do not say that there may not be crimes rising even to first degree murder committed by the instrumentality of an automobile. "Death caused by recklessly driving a motor vehicle, or by carelessly discharging a firearm in a populous place, are examples of involuntary manslaughter; but to intentionally run down or shoot a citizen, causing his death, is a higher offense": Com. v. Micuso,
Under the indictment charging murder and manslaughter, there could not be a conviction of involuntary manslaughter: Com. v. Weinberg,
While the conclusion we have reached disposes of the case, we think it well to pass upon one other question which the record discloses, so that it and others of like kind may not hereafter be brought before us with hope of a favoring outcome. The indictment charged that the defendant "in and upon the body of one Emma Mary Gibson . . . . . . did make a certain assault andshe the said Emma Mary Gibson . . . . . . of his malice aforethought [in the murder count] did kill and murder [in the one for manslaughter] did kill and slay." The court permitted the Commonwealth to amend by changing the *200
word "she" to "her." This was proper. The mistake was manifestly one of grammar and was amendable: Com. v. Boyd,
The judgment is reversed, without prejudice to the right of the Commonwealth to proceed against defendant for the crime of involuntary manslaughter: Com. v. Greevy,