Commonwealth v. Long

• Decision Date: 13 April 1938
• Docket Number: 36-1938
• Citation: 198 A. 474,131 Pa.Super. 28
• Parties: Commonwealth v. Long, Appellant
• Court: Pennsylvania Superior Court

198 A. 474

131 Pa.Super. 28

Commonwealth v. Long, Appellant

No. 36-1938

Superior Court of Pennsylvania

April 13, 1938

Argued March 14, 1938

Appeal from judgment of Q. S. Blair Co., March Sessions, 1937, No 47, in case of Commonwealth v. Edith Long.

Indictment for operating motor vehicle while under the influence of intoxicating liquor. Before James, P. J., specially presiding.

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

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

Error assigned, among others, was refusal of motion for arrest of judgment.

Judgment affirmed.

Samuel H. Jubelirer, for appellant.

C. B Wray, District Attorney, for appellee.

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

OPINION

Rhodes, J.

Defendant was tried on three indictments: (1) Involuntary manslaughter; (2) aggravated assault and battery; and (3) operating a motor vehicle while under the influence of intoxicating liquor.

The jury returned a verdict of guilty of operating a motor vehicle while under the influence of intoxicating liquor, and of not guilty as to the other two charges. Defendant moved for a new trial, and also made a motion in arrest of judgment. Both motions were refused, and defendant was sentenced. She has appealed.

The only question raised on this appeal is whether there was competent evidence to sustain the verdict of guilty on the charge of operating a motor vehicle while under the influence of intoxicating liquor.

Appellant's fourth assignment of error relates to the refusal of the court below to allow appellant's motion in arrest of judgment. Insufficiency of evidence gives no support to a motion in arrest of judgment, but does support a motion for a new trial. Commonwealth v. Jones, 303 Pa. 551, 154 A. 480. In Commonwealth v. Bateman, 92 Pa.Super. 53, at page 56, this court held: "Judgments can only be arrested, in criminal cases, for causes appearing upon the face of the record; this is a general rule, and is well settled; an exception exists when pardon is pleaded before sentence. The record to be considered consists of the indictment, the plea and issue and verdict. The evidence in the case forms no part of the record within the rule that a motion in arrest of judgment can be based only on matters of record; and hence defects which appear only by aid of evidence cannot be the subject of such a motion." See also Commonwealth v. Grant, 121 Pa.Super. 399, 183 A. 663. The other assignments relate to the refusal of the trial judge to direct the jury to acquit appellant on the ground that the evidence adduced by the Commonwealth was insufficient in law to warrant a conviction of operating a motor vehicle while under the influence of intoxicating liquor, the refusal of a new trial, and the entering of the sentence.

It appears that appellant was employed at an inn near Altoona. On the evening of February 19, 1937, a party of three men visited the inn, where they remained until about 2:30 the following morning. The place closed about that time, and appellant was invited by one of the men, William Seibert, to accompany him to Altoona. After some delay, Seibert, Jerome Kimmel, and appellant started on their way to Altoona in Seibert's truck, which was being operated by appellant. About a quarter of a mile from the inn the truck proceeded across the highway to the left-hand side, thence over a 4 1/2 foot berm, and, at a 45 degree angle, up and over an embankment about 4 1/2 to 5 feet high and having a grade of 80 to 90 per cent. It continued through an orchard about 35 feet to an excavation which was about 36 feet across. The marks of the truck ended at the top of this excavation. There were no apparent markings in the bottom of the excavation; the markings reappeared on the other side. There the truck came to rest with the rear wheels on top of the bank and the front end in the excavation. The ground was so torn up that there were no distinguishable tire marks at that point. There were tire marks on the highway, which was dry and virtually straight, for approximately 50 feet before the truck turned left across the highway at about a 45 degree angle. These marks were then apparent for about 36 feet more before the truck reached the berm. In the truck Kimmel had been sitting next to appellant, who was driving, and next to Kimmel was Seibert. Appellant was found pinned under the truck, in a semiconscious condition, while Seibert was lying on the ground unconscious. Appellant and Seibert were removed to the hospital; the latter died within an hour. Appellant had partaken of both beer and whiskey during the evening. The testimony was conflicting as to the quantity, but appellant admitted that she drank some. Appellant insisted upon driving the truck because she thought she was more capable of driving than Seibert, who also had been drinking. Seibert, who occupied the seat with appellant and Kimmel, according to the testimony of Kimmel, requested appellant not to drive so fast. Kimmel also testified that he noticed the truck swerve to the left, and that was all that he knew until he recovered consciousness after the accident.

Appellant testified that either Kimmel or Seibert bumped her arm, and that the wheels of the truck then started to shimmy or wabble; that she tried to get it under control when some one grabbed the steering wheel, throwing the truck over to the left-hand side of the highway; and that at that time she must have become excited and stepped on the gas instead of the brake. Kimmel, who was sitting next to her, testified that no one bumped her arm or grabbed the steering wheel. A statement which she gave two days after the accident was offered in evidence by the Commonwealth. In this she said that she had no alcoholic drinks on the evening of February 19th or the early morning of February 20th before operating Seibert's truck. At the trial she testified that this statement was not correct, and that she had had something to drink prior to operating the truck.

Appellant contends that there was no evidence that the liquor which appellant imbibed before operating Seibert's truck...