Com. v. Smoker

• Decision Date: 17 September 1964
• Citation: 204 Pa.Super. 265,203 A.2d 358
• Parties: COMMONWEALTH of Pennsylvania v. Lloyd SMOKER, Appellant.
• Court: Pennsylvania Superior Court

Page 358

203 A.2d 358

204 Pa.Super. 265

COMMONWEALTH of Pennsylvania v. Lloyd SMOKER, Appellant.

Superior Court of Pennsylvania.

Sept. 17, 1964.

Application for Allocatur Denied Dec. 7, 1964.

Joseph J. Lombardo and John W. Beyer, Arnold, Bricker, Beyer & Barnes, Lancaster, for appellant.

Theodore A. Parker, Asst. Dist. Atty., Wilson Bucher, Dist. Atty., Columbia, for appellee.

Before ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

FLOOD, Judge.

The defendant was found guilty of involuntary manslaughter and the court below refused his motion to arrest judgment or grant a new trial. Mrs. Pennington was killed as a result of a head-on collision between the car in which she was riding and the car driven by the defendant which had crossed into the wrong lane. The defendant argues that there is no proof that he did an intentional act which constituted a crime; that proof that he was asleep is insufficient to support the conviction in the absence of some negligent conduct inducing sleep; and that the mere presence of his car on the wrong side of the road is not sufficient to sustain the conviction.

These contentions are largely answered by the definition of involuntary manslaughter under Pennsylvania law. The usual definition is set forth in Commonwealth v. Flax, 331 Pa. 145, 157, 200 A. 632, 637 (1938) as follows: '[A]ll such killings as result unintentionally and without malice from the commission of unlawful but non-felonious acts not naturally tending to cause death or great bodily harm, or the negligent performance of acts which are not unlawful per se, or by the negligent omission to perform a legal duty.' ¹ This definition was reaffirmed by this court in Commonwealth v. Root, 191 Pa.Super. 238, 156 A.2d 895 (1959). Although this case was reversed on other grounds, Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310, 82 A.L.R.2d 452 (1961), this definition was in no way modified.

Involuntary manslaughter may thus be based upon the negligent performance of an act not harmful per se or a negligent omission to perform a legal duty. Negligent killing in the course of a failure to obey the law is sufficient under this definition. The trial court went beyond what defendant was entitled to under this definition and charged that the defendant's conduct must be rash or reckless.

While admitting that a specific intent to kill or harm is not required for conviction of this crime, the defendant contends that there must at least be an intent to do what he did. If he means by this that he must have intentionally driven into the wrong lane, this is not the law. It is enough that he intentionally drove his car and recklessly failed to drive it in its proper lane, driving it instead, because of inattention to what he was doing, into the wrong lane. This case in no way resembles the cases which the defendant cites. Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959) was a case involving vicarious liability. Commonwealth v. Unkrich, 142 Pa.Super. 591, 16 A.2d 737 (1940), involved an act made unlawful only by a fact which the defendant did not know and could not be expected to know.

Of course, the burden was upon the Commonwealth to prove his guilt beyond a reasonable doubt, but under the evidence the jury was warranted in finding that it did so. The mere fact that he drove on the wrong side of the road, without any visible reason or compulsion to do so, would warrant the jury in inferring that he did so negligently and, particularly in view of the great danger involved in such conduct under the circumstances, that he did so recklessly. Nothing appeared in the evidence to show that he was forced off the road, that he was faced with a sudden emergency or that any other fact existed which might have relieved him of responsibility.

The defendant had no burden to exculpate himself but if the circumstances proved by the Commonwealth give rise to an inference of his guilt which the jury accepts and he fails to offer anything to destroy that inference, or raise a reasonable doubt about it in the jury's mind, he has no ground of complaint.

The defendant claims that if he fell asleep he could not be found guilty in the absence of some negligent conduct which induced the sleep. However, the defendant testified that he had been awake since about 6 A.M., working fourteen hours in the interval. The jury could have found his conduct reckless in driving after 10 P.M. that day under the circumstances, particularly since on cross examination he indicated that he had only seven hours sleep in the preceding forty hours. They could have properly inferred from this that his falling asleep and the resulting tragedy were a product of this recklessness.

The defendant did not testify at the trial that he was asleep at the time of the accident. Two witnesses testified for the Commonwealth that shortly after the accident the defendant said he 'apparently fell asleep' or 'I guess I fell asleep'. The defendant, in his cross examination, said that he thinks he told the policeman he probably dozed. These statements, even if the jury believed that he made them, did not prove that he was asleep and it would not be surprising that the jury did not accept them as true in view of his failure to testify that he was asleep and his testimony on the contrary, that he felt fine and did not feel any drowsiness.

The charge on this point, of which complaint is made, is as follows: 'Mr. Smoker said that he felt fine, no ailments, no drowsiness, no sickness of any kind. He wasn't sure, or at least he didn't appear to be positive as to what he said to the trooper but he thinks he said he probably dozed * * * There is an intimation that he might have been asleep, but that isn't what he tells us. That is the reason or the excuse for being on that side of the highway the trooper said that Mr. Smoker gave him at the time this collision occurred, but here in the court room from the witness stand, Mr. Smoker doesn't tell us why he was on the wrong side of the highway and you will have to determine whether or not he was doing a rash and reckless act when this death occurred. If he was, then you would be justified in finding him guilty of this offense of...