Commonwealth v. Buoy

• Decision Date: 15 July 1937
• Docket Number: 206-1937
• Citation: 193 A. 144,128 Pa.Super. 264
• Parties: Commonwealth v. Buoy, Appellant
• Court: Pennsylvania Superior Court

193 A. 144

128 Pa.Super. 264

Commonwealth v. Buoy, Appellant

No. 206-1937

Superior Court of Pennsylvania

July 15, 1937

Argued April 12, 1937

Appeal from judgment of Q. S. Crawford Co., May Sessions, 1936, No 19, in case of Commonwealth v. Chester D. Buoy.

Indictment charging defendant with operation of motor vehicle while under the influence of intoxicating liquor. Before Kent, P J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty and judgment and sentence thereon. Defendant appealed.

Errors assigned, among others, were various excerpts from charge of trial judge.

Judgment affirmed.

F. Joseph Thomas, for appellant.

Herbert A. Mook, District Attorney, for appellee.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Rhodes, J.

Defendant was tried and convicted on an indictment charging that he operated a motor vehicle while under the influence of intoxicating liquor. A new trial was refused and sentence was imposed; defendant appealed.

Error is assigned, inter alia, to the refusal of a new trial and to certain excerpts from the charge of the court. The latter are the only assignments encompassed in the statement of questions involved, and no others need be considered. Com. v. Cauffiel, 298 Pa. 319, 148 A. 311. At the conclusion of the charge the trial judge asked if counsel had "any requests for additional charge." The record discloses none; nor were specific exceptions taken to those portions of the charge referred to in the statement of questions involved. A general exception was taken. We have nevertheless reviewed the charge and all of the assignments relating thereto. See Act of May 11, 1911, P. L. 279, § 2, as amended by Act of May 24, 1923, P. L. 439, § 1 (12 PS § 1197).

Appellant's principal contention is that the trial judge, in his charge to the jury, incorrectly defined the meaning of the term "under the influence of intoxicating liquor," as used in the Act of May 1, 1929, P. L. 905, art. 6, § 620 (f), as amended by Act of June 22, 1931, P. L. 751, § 2, 75 PS § 231 (f), under which the indictment was drawn. The trial judge made it clear to the jury that a verdict of guilty depended on its finding that the appellant operated his motor vehicle on the highway while under the influence of intoxicating liquor. In this connection the trial judge charged: "You will observe, the question for you to determine is, whether or not, at the time complained of, sometime between 6:15 and 7:00 o'clock, as we recollect, was the defendant operating his motor vehicle on this highway, while under the influence of an intoxicating liquor." Thereupon the trial judge proceeded as follows: "Whenever a person is under the influence of intoxicating liquor, so as not to be entirely himself, he is intoxicated. Although he can walk straight; although he may attend to his business, and may not give any outward, visible signs to the casual observer, that he is drunk, yet, if he is under the influence of liquor so as not to be himself, so as to be excited from it, and not in possession of that clearness of intellect, and that control of himself that he otherwise would have, he is intoxicated."

We are unable to see how appellant was injured by this portion of the charge of the court. It was favorable to him. The Commonwealth was not obliged to prove that appellant was so intoxicated or drunk that he could not properly function or safely drive a car. The statute does not require proof of intoxication. All that the statute requires is that the appellant be under the influence of intoxicating liquor while operating a motor vehicle. Act of May 1, 1929, P. L. 905, art. 6, § 620 (f), as amended by Act of June 22, 1931, P. L. 751, § 2, 75 PS § 231 (f). The expression, "under the influence of intoxicating liquor," covers not only all the well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in intoxicating liquors, and which tends to deprive one of that clearness of intellect and control of himself which he would otherwise possess. State v. Rodgers, 91 N.J.L. 212, 102 A. 433; Words & Phrases (Third Series), vol. 7, p. 683.

Appellant refers to another isolated portion of the charge wherein the trial judge referred to the dual nature of the offense for which appellant was indicted. The trial judge referred to the fact that it was a combination of drinking liquor and operating a motor vehicle upon the highways that constituted the offense charged, to wit, operating a motor vehicle on the highway while under the influence of intoxicating...