Opinion
March 16, 1934.
April 23, 1934.
Criminal law — Automobile — Pedestrian — Injury — Assault and battery and aggravated assault and battery — Evidence — Sufficiency.
In order to warrant a verdict of guilty in the trial of an indictment charging an operator of a motor vehicle, who struck and injured a pedestrian, with assault and battery and aggravated assault and battery, it was incumbent upon the Commonwealth to prove that the operator of the car was wilfully driving at a high rate of speed, or in a manner which involved a reckless disregard of the safety of others lawfully using the streets. In the absence of such evidence a judgment entered on a verdict of guilty will be reversed.
Criminal law — Automobile — Accident — Failure to stop and render assistance — Driver — Owner — Act of June 22, 1931, P.L. 751, Section 1025.
In the trial of an indictment charging a defendant with failure to stop and render assistance after being involved in an accident, there is sufficient evidence to sustain a conviction where it appears that the defendant was the owner of the car and that he occupied it at the time of the accident. It is immaterial whether he was driving the car when it struck the pedestrian.
Under the Act of June 22, 1931, P.L. 751, Section 1025, where a vehicle is involved in an accident, it is the duty of the driver, or owner if he be present, to stop at the scene of the accident and render assistance.
Appeal Nos. 49 and 50, October T., 1934, by defendant from judgments and sentence of Q.S., Philadelphia County, December Sessions, 1931, Nos. 185 and 186, in the case of Commonwealth of Pennsylvania v. Edward Donnelly, alias Trigger Donnelly.
Before KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. No. 49, October T., 1934, reversed; No. 50, October T., 1934, affirmed.
Trial of indictments charging assault and battery, aggravated assault and battery and failure to stop and render assistance. Before ALESSANDRONI, J.
The facts are stated in the opinion of the Superior Court.
Verdicts of guilty and judgments and sentence entered thereon. Defendant appealed.
Error assigned, among others, was the refusal of defendant's motions for binding instructions.
Michael A. Foley, for appellant.
James W. Tracey, Assistant District Attorney, for appellee.
Argued March 16, 1934.
The appellant and John J. Muldoon were indicted for the crimes of assault and battery and aggravated assault and battery and failure to stop and render assistance after injury to a person. The jury found Donnelly, the appellant, guilty under both indictments, and Muldoon not guilty of assault and battery or aggravated assault and battery, but guilty of failure to stop and render assistance after injury to a person. Donnelly took an appeal, alleging that there was no evidence to sustain his conviction of assault and battery and aggravated assault and battery, and that the Commonwealth's proof did not warrant the conviction of both defendants for failure to stop and render assistance.
On October 5, 1931, at about 7 p.m., William Cornelius Christie, accompanied by his wife, was crossing Grays Ferry Avenue at the intersection with Thirty-sixth Street, when he was struck by an automobile and was injured. Neither he nor his wife, nor another witness called upon the part of the Commonwealth, was able to give any details of the accident. Mrs. Christie testified that after the accident the car ran about a half square and was returned, when she recognized Donnelly, who was then driving the car. Mr. Pitts, the only eye-witness besides the Christies, testified that the car ran about 12 yards after the accident, was backed, and was then immediately driven away, but as it was dark, he was unable to state positively whether Donnelly or Muldoon was at the wheel. Muldoon testified that he was operating the car at the time of the injury.
In order to warrant a verdict of assault and battery or aggravated assault and battery, it was incumbent upon the Commonwealth to prove that the operator of the car was wilfully driving at a high rate of speed, or in a manner which involved a reckless disregard for the safety of others lawfully using the streets: Com. v. Bergdoll, 55 Pa. Super. 186; Com. v. Coccodralli, 74 Pa. Super. 324; Com. v. Muska, 92 Pa. Super. 121. The record before us is barren of circumstances which would indicate such an unlawful speed, or other wanton conduct, amounting to a wilful disregard for the safety of the traveling public. The evidence being insufficient to prove gross negligence which is required to support a criminal conviction, the court should have sustained a request for binding instructions in the indictment charging assault and battery and aggravated assault and battery. The evidence, however, was sufficient to warrant the finding of guilty on the charge of failure to stop and render assistance. Under the provisions of the Vehicle Act of May 1, 1929, P.L. 905, 984, § 1025, amended June 22, 1931, P.L. 751, § 2 (75 Pa.C.S.A. § 634), "the driver and owner, if present, of any vehicle involved in any accident," resulting in injury to any person, is guilty if assistance is not rendered.
It is unnecessary for us to speculate upon the reasons which moved the jury in this case to find both defendants guilty of failure to stop and render assistance, as consistency in the verdicts is not necessary: Com. v. Kline, 107 Pa. Super. 594, 164 A. 124. It may be, however, that the jury concluded that both were in the car, that Muldoon was driving at the time of the accident, and that Donnelly drove the car back to the scene of the accident. If that were so, the verdicts were entirely congruous. While Muldoon, as above stated, said that he was driving the car, Mrs. Christie was positive that Donnelly, the admitted owner of the car, returned with it. In any event, there was sufficient evidence to support the finding of the jury that Donnelly, either as owner or driver, was in the car at the time of the accident and that he failed to render assistance. We find no reason for disturbing the conviction of the appellant for failure to stop and render assistance.
The judgment is reversed in No. 49, October Term, 1934, and is affirmed in No. 50, October Term, 1934, and the defendant is ordered to appear in the court below at such time as he may there be called and that he be by that court committed until he has complied with the sentence or any part of it which had not been performed at the time the appeal in No. 50, October Term, 1934, was taken.