Commonwealth v. Raspa

• Decision Date: 13 December 1939
• Docket Number: 175-1939
• Citation: 138 Pa.Super. 26,9 A.2d 925
• Parties: Commonwealth v. Raspa, Appellant
• Court: Pennsylvania Superior Court

9 A.2d 925

138 Pa.Super. 26

Commonwealth v. Raspa, Appellant

No. 175-1939

Superior Court of Pennsylvania

December 13, 1939

Argued September 26, 1939

Appeal from judgment of Q. S. Phila. Co., June Sessions, 1937, No 777, in case of Commonwealth v. Samuel Raspa.

Indictment charging assault and battery and aggravated assault and battery. Before Smith, P. J.

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 new trial.

Judgment affirmed.

I Finkelstein, with him Louis Lipschitz, for appellant.

Emanuel W. Beloff, Assistant District Attorney, with him Charles F Kelley, District Attorney, for appellee.

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

OPINION

Hirt, J.

This appeal raises the question of the sufficiency of the evidence to sustain a conviction of the defendant on a charge of aggravated assault and battery with a truck.

A road was being constructed on a W. P. A. project in the Strawberry Mansion section of Fairmont Park in Philadelphia; between 200 and 300 men were employed on the work. The road runs in a general northerly and southerly direction, and the improvement consisted in bringing the roadway to grade and paving it with crushed stone. So that traffic would not be interrupted, the west one half of the roadway was first paved to a width of twenty feet, and the work in progress at the time of the injury consisted in excavating the east one half of the road to grade and hauling away the excess material. The plans contemplated a finished pavement forty feet in width.

There were ten or eleven trucks on the project and the workmen were excavating material and loading the trucks by means of hand tools. Defendant was employed on the work with his three-and-one-half-ton dump truck and was driving it at the time of the alleged assault. He had backed the truck on to the east side of the road, the unfinished portion, but at a point where the excavation to grade had already been completed. The labor foreman in charge of the work ordered him to move his truck to a location where a group of men were standing idle waiting for a truck to haul away the excavated material. Defendant arbitrarily refused to move his truck, giving as an excuse: "Because I don't want to. I don't have to." When threatened with discharge and the removal of his truck from the work because of insubordination, defendant in anger drove his truck forward on to the finished portion of the pavement, stopped, and immediately started to back the truck in the direction of the location assigned to him. The prosecutor, J. P. Sheedy, was a labor foreman on the project, and as the defendant's truck pulled out on to the pavement, Sheedy, in the performance of his duties, was walking on the unfinished part of the pavement near the center line of the road. He was observed by the defendant as he walked past the truck but, notwithstanding notice to defendant that Sheedy was passing to the rear, defendant immediately backed his truck without warning and within a distance of twelve feet struck Sheedy and seriously injured him. As the truck started to back, a group of workmen seeing Sheedy's danger, shouted to the defendant to stop. The testimony is sufficient to support the finding that defendant disregarded this warning. It is also reasonably clear that Sheedy was not facing the truck when he was struck.

The Act of March 31, 1860, P. L. 382, 18 PS 2112, in...