Commonwealth v. Smith

• Decision Date: 19 January 1954
• Citation: 102 A.2d 243,174 Pa.Super. 533
• Parties: COMMONWEALTH v. SMITH
• Court: Pennsylvania Superior Court

102 A.2d 243

174 Pa.Super. 533

COMMONWEALTH v. SMITH

Superior Court of Pennsylvania.

January 19, 1954

Prosecution for operating motor vehicle while under influence of intoxicating liquor. Defendant was convicted and sentenced by the Court of Quarter Sessions, Dauphin County, at No. 108 January Sessions, 1953, William H. Neely, J., and he appealed. The Superior Court, No. 34, March term, 1954, Ross J., held that statute providing that fines collected from persons convicted of driving while intoxicated shall be used to pay physicians' fees for examination of person accused of driving while intoxicated does not require that persons must be examined by physicians before they can be convicted of driving while intoxicated.

Judgment affirmed.

Elmer E. Harter, Jr., Harold R. Prowell, Prowell & Harter, Harrisburg, for appellant.

Frederick H. Bolton, Asst. Dist. Atty., H. F. Dowling, Dist. Atty., Harrisburg, for appellee.

Before RHODES, P. J., and HIRT, ROSS, GUNTHER, WRIGHT and WOODSIDE, JJ.

ROSS Judge.

Alvin Smith was tried and convicted before a judge and jury in the Court of Quarter Sessions of Dauphin County for operating a motor vehicle while under the influence of intoxicating liquor. His motion in arrest of judgment was overruled and after he was sentenced he took this appeal.

On October 16, 1952, between 7 and 7:30 a. m., a truck operated by defendant collided with an automobile driven by one Floyd Grubb, Jr. The accident occurred on Route 230 in the Borough of Highspire.

Grubb, testifying on behalf of the Commonwealth, stated that after the collision the defendant ‘ opened the door and almost fell out of the cab’ of the truck; that he smelled liquor ‘ all around’ defendant, ‘ especially when he talked and babbled in such manner’ . Grubb left the defendant at the scene of the accident, ‘ swaying to and fro as any person under the influence would’, while he went across the road to a gasoline service station to telephone the police.

Joseph Bosavage, a state policeman, arrived at the service station about 20 minutes after the accident. When defendant saw Bosavage arrive he came ‘ staggering * * * across the highway’ to the gasoline station. With respect to defendant's condition Bosavage testified: ‘ I had Mr. Smith walk a straight line and he was staggering. Then as I was near him, I noticed the odor of alcohol and I asked him if he had been drinking and he said he was drinking the night before.’ Bosavage did not take defendant to a doctor for examination because defendant was ‘ visibly intoxicated’ .

Herman J. Faiola, another state policeman, arrived on the scene just before Bosavage gave defendant the ‘ walking test’ . Faiola stated that his opinion the defendant was ‘ visibly intoxicated’ was based upon the following observations: ‘ * * * the defendant had a strong odor of alcohol about him, weaving back and forth * * * His gait was very staggery and upon the defendant coming back towards us I asked him to put his heels together and close his eyes momentarily and he didn't. He quickly opened his eyes and said he couldn't do it, he had too much.’

Two police officers at the Borough of Highspire arrived at the service station shortly after the state policemen had given defendant the ‘ walking test’ and co-ordination test. Glenn Cooney, one of the Highspire officers, stated that he ‘ smelled the alcohol’ on defendant and testified that defendant admitted drinking whiskey and gin ‘ that same morning previous to the accident’ . The other Highspire policeman, Amos T. Miller, stated that the defendant ‘ talked in a rambling manner’ and added, ‘ You could smell liquor on his breath.’

Alvin Smith was the only witness for the defense. He testified that about 10 p. m. the night before his arrest he drank ‘ three small ones out of whiskey because I don't like gin anyhow’ ; but on cross-examination admitted, ‘ I just might have taken one swallow [of gin] to see if it tasted satisfactory * * *.’ The ‘ three small ones' out of the whiskey bottle and the ‘ swallow’ of gin was consumed over a period of approximately three and one-half hours. The defendant, according to his testimony, left his companions at 1:30, drove his automobile home and went directly to bed. He testified that he had nothing to drink between 1:30 a. m. and the time of the accident. When his truck collided with the Grubb car the defendant, according to his story, struck the left side of his head on the door.

Because of the present importance attached to the alleged head injury, we reproduce the following from the record of defendant's testimony on direct examination:

‘ What effect did that blow on your head have upon you? A. At the time, it just numbed me all of a sudden. I just stopped and as soon as I pulled off out of the road, I pulled over to the side of it, and so I sat there for a minute until I could get my scenery back again.

‘ Q. Get your what? A. Get my scenery back again.

‘ Q. Your senses you mean? A. Yes. Then I started getting out and he [Grubb] was already out so we met in front of the truck. So I asked him, ‘ What type of driving you call that?’

‘ Q. Were you able to maintain your balance? A. Yes, but I was dizzy for a while, you know, until I got--

‘ Q. You were dizzy for a while, you say? A. Yes.’

The defendant stated that he was nervous after the accident and that his speech then was ‘ about the same as it is now, as far as that goes. I am excited now, see, because it is the same thing, I can't talk when I get excited.’ He offered as a second explanation for ‘ staggering’ after the accident a ‘ twisted ankle’ that interfered with his normal walk. He demonstrated his walk for the jury. On cross-examination he admitted that he had not complained of a head injury when he was being examined by the police officers after the collision. He stated that he did not tell the policemen that he had had anything to drink.

The Commonwealth concedes that defendant was not taken to a doctor for an examination to determine whether or not he was under the influence of intoxicating liquor.

The Vehicle Code, Act of May 1, 1929, article VI, section 620, as amended, 75 P.S. § 231, provides: ‘ It shall be unlawful for any person to commit any of the following acts: * * * (f) To operate a motor vehicle * * * while under the influence of intoxicating liquor. * * * .’ The Vehicle Code, 75 P.S. § 737, provides: ‘ (a) * * * That all fines and penalties collected, and all bail forfeited for violations of the provisions of subsection (f) of section six hundred twenty (620), shall be paid to the treasury of the county wherein the violation occurred, to be used by such county for the payment of physicians' fees for the examination of persons accused of violating the provisions of the said section. * * *’

The defendant, relying upon the above provisions, contends that the Vehicle Code requires ‘ an affirmative finding by a physician before a conviction can be had on the charge of operating a motor vehicle while under the influence of intoxicating liquors.’ With this contention we cannot agree.

It is of course, the practice for law enforcement officers to have a physician examine a person suspected of violating section 620 of the Vehicle Code. The mere fact that the Legislature was aware of this practice and made provision for payment of physicians' fees does not disclose an intention to require that there must be an examination by a physician before a conviction...