Commonwealth v. Ushka
| Citation | 130 Pa.Super. 600,198 A. 465 |
| Decision Date | 13 April 1938 |
| Docket Number | 55-1938 |
| Parties | Commonwealth v. Ushka, Appellant |
| Court | Superior Court of Pennsylvania |
Argued March 14, 1938
Appeal from judgment of Q. S. Phila. Co., April Sessions, 1937, No 1009, in case of Commonwealth v. Alexander Ushka.
Indictment for involuntary manslaughter. Before Lamberton, 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 request for binding instructions.
Judgment reversed.
Henry Thomas Dolan, with him Robert C. Duffy, for appellant.
Raymond A. Speiser, Assistant District Attorney, with him Charles F Kelley, District Attorney, for appellee.
Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker and Rhodes, JJ.
On March 29, 1937, at 6:15 a. m., defendant was driving his Ford car south on Limekiln Pike, in the city of Philadelphia, and Edward Ferris was driving a one and one-half ton truck west on Washington Lane. The motor vehicles collided at the right angle intersection of these streets, and as a result David Ferris, a fourteen-year-old boy, seated beside his father, the driver of the truck, was killed. Defendant was indicted, and convicted of involuntary manslaughter. Defendant's motion for new trial was refused, and defendant has appealed.
At the close of Commonwealth's case, defendant demurred to the evidence; the trial judge overruled the demurrer. At the termination of the trial, the trial judge refused defendant's written request for binding instructions. The only question we need to consider on this appeal is the sufficiency of the evidence to support the verdict of guilty.
Limekiln Pike extends north and south, and Washington Lane east and west. At the intersection Limekiln Pike has a 36-foot roadway, and 12-foot sidewalks. Washington Lane has an 18-foot paved roadway, with 13-foot shoulders on each side, and 13-foot sidewalks. On the northeast corner there is a vacant lot, on the northwest corner a taproom, and on the southwest corner a gas station. The collision of the two motor vehicles occurred 6 feet east of the west curb line of Limekiln Pike, and 13 feet south of the north curb line of Washington Lane. After the contact the truck swung around in an arc, and upset on its right side near the southwest corner of the intersection and 52 feet south from the point of collision. When the truck came to rest it was pointed in the opposite direction from which it had been proceeding. Appellant's car continued south, struck a pole near the southwest corner of the intersection, and came to a stop in front of a tailor shop about 130 feet from the point of collision. Appellant's brother was a passenger in his car, and testified for the defense. Appellant cleared the intersection before the truck overturned. The car was damaged at the left front door. The motor of the truck was pulled away from the transmission, its frame was bent, and it was broken on the right side. The driver of a car proceeding south on Limekiln Pike when 151 feet north of the north line of the intersection can see 175 feet east on Washington Lane, and when 75 feet north of the north line of the intersection can see 275 feet east on Washington Lane. It does not appear in evidence whether the corresponding distances would apply to the driver of a car proceeding west on Washington Lane. However, there was nothing to interfere with either driver's view of the other street across the vacant lot on the northeast corner of the intersection.
The driver of the truck did not see appellant's car until it was 15 or 20 feet away from him. He testified that the latter then swerved his car to the right, whereupon the truck and appellant's car came in contact. It appears that the front of the truck struck appellant's car at about the left front door. The truck driver also testified that as he approached the intersection, at a speed of about 20 miles an hour, he looked to the north and saw nothing (see Reilly et al. v. Philadelphia et al., 328 Pa. 563, 566, 195 A. 897, 899), and that when he saw the car about 15 or 20 feet away it was too late to do anything. Appellant testified that at the time of the accident he was going 10 or 15 miles an hour, having reduced his speed as he approached the intersection. He further testified that about 100 feet from the intersection, or 115 feet from the point of collision, he looked to his left and saw no approaching vehicle, and that then he concerned himself with traffic which might be coming from his right. Proceeding across the intersection he did not see the truck until the impact.
The driver was removed from the overturned truck in an unconscious condition, and his son died from his injuries.
It is the position of the Commonwealth that the evidence established that appellant's act, while not unlawful in itself, was done in an unlawful manner, and that the death of the Ferris boy resulted from this act.
The burden was on the Commonwealth to prove beyond a reasonable doubt that appellant committed an unlawful act, not amounting to a felony, "or an act or acts not merely careless but also so rash and reckless as to approximate unlawfulness": Com. v. Matteo, 130 Pa.Super. 524, at page 527, 197 A. 787, at page 789. See, also, Com. v. Gill, 120 Pa.Super. 22, 182 A. 103; Com. v. Mayberry, 290 Pa. 195, 138 A. 686; Com. v. Ochs, 91 Pa.Super. 528; Com. v. Godshalk, 76 Pa.Super. 500; Com. v. Samson, 130 Pa.Super. 65, 196 A. 564.
That the death of David Ferris resulted from the injuries which he received at the time of the collision was conceded by appellant.
The Commonwealth maintains that the attendant circumstances warranted submission of the case to the jury; that the location of the vehicles after the accident was evidence of excessive speed of appellant's car under the circumstances; that the physical facts, together with the admission of appellant that he did not look to the left for approaching traffic on Washington Lane after reaching a point about 100 feet from the north line of the intersection, were sufficient to sustain the conviction.
The Act of March 31, 1860, P. L. 382, § 79, as amended by the Act of April 11, 1929, P. L. 513, § 1, 18 PS § 2226, refers to "involuntary manslaughter, happening in consequence of an unlawful act." The degree of negligence, if any, is not important where one while doing an unlawful act accidentally kills another. "If the act is unlawful, -- that is, is forbidden by law, illegal, contrary to law, -- and the death of another results as a consequence of it, it constitutes involuntary manslaughter": Com. v. Gill, supra, 120 Pa.Super. 22, at page 35, 182 A. 103, at page 108.
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Commonwealth v. Williams
... ... in order to sustain the conviction the Commonwealth [133 ... Pa.Super. 108] is obliged to show that the death was the ... result of, or happened in consequence of, the unlawful act as ... we have defined it, and that the Commonwealth failed to do so ... in the instant case. In Com. v. Ushka, 130 Pa.Super ... 600, at page 604, 198 A. 465, at page 467, we said, quoting ... from Com. v. Gill, supra, 120 Pa.Super. 22, at page ... 35, 182 A. 103, at page 108: " 'If the act is ... unlawful, -- that is, is forbidden by law, illegal, contrary ... to law, -- and the death of another ... ...