A. M. Oliver, Thomas Park Shearer, Pittsburgh, for appellant.
William S. Rahauser, District Attorney, Samuel Strauss, Assistant District Attorney, Pittsburgh, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 168 Pa. Super. Page 44]
Defendant was indicted for involuntary manslaughter, tried, and convicted. Motions in arrest of judgment and for a new trial were refused. After the imposition of sentence, defendant appealed to this Court.
The Commonwealth charged that defendant was the driver of the automobile which struck and instantly killed Rachel M. Bernhardt, a pedestrian. Defendant admitted that the 1949 Ford automobile which he drove to his home in Mt. Lebanon, Allegheny County, from downtown Pittsburgh, in the early morning of October 30, 1948, was the automobile which struck and killed the deceased. It was not controverted that the automobile at the time was being driven in such a careless and reckless manner as to make the killing involuntary manslaughter. The defense was that defendant did not drive the automobile at the time of the accident, but that an unknown person took it from the driveway of defendant's home after he had retired, caused the death, and then returned the automobile to the driveway from which it had been taken.
Defendant first questions the sufficiency of the evidence to sustain the conviction. This issue is confined to defendant's identity as the driver of the automobile at the time of the fatal accident. The Commonwealth established that Russell Bernhardt, his wife Rachel M. Bernhardt, and Albert Macrum left Berenda's Cafe at 3134 West Liberty Avenue, Dormont, about 2:30 a. m. October 30, 1948. They walked across West Liberty Avenue to the Bernhardt automobile which was parked on the west side of the street. As he reached the curb, Mr. Bernhardt noticed the headlights of an automobile approaching rapidly about 200 feet away, and he turned
[ 168 Pa. Super. Page 45]
to warn his wife and Mr. Macrum who were a few feet behind him. The oncoming automobile was being driven at an excessive rate of speed; the testimony was to the effect that it was proceeding between 70 and 100 miles an hour. Mrs. Bernhardt was struck by this automobile and killed instantly. Mr. Macrum was thrown beneath the Bernhardt automobile on the west side of West Liberty Avenue and seriously injured. This automobile then struck the left rear of the Bernhardt automobile, and after stopping momentarily about a block away it continued toward Mt. Lebanon.
An employe of the Pittsburgh Railways Company, while repairing a switch on the trolley tracks on West Liberty Avenue about 800 feet beyond the scene of the accident, observed a dark 1949 Ford with white side wall tires pass about 2:30 a. m. This witness noticed that the fender of the Ford 'was jammed up on the wheel' and 'made a sound like a siren.'
Defendant was engaged in the insurance business in Pittsburgh and had his office in the Investment Building. He lived at 1241 Washington Road, Mt. Lebanon. About noon on October 30, 1948, John J. Kauper, Captain of Police of Mt. Lebanon Township, discovered a dark green 1949 Ford with a damaged right front fender parked in the driveway at defendant's home in Mt. Lebanon. Defendant had been using this automobile about a week. It had been loaned to him by a friend, J. L. Risdon. Defendant admitted that he drove this Ford from downtown Pittsburgh to his home in Mt. Lebanon in the early morning of October 30th, and that he went out West Liberty Avenue and had passed the place where Mrs. Bernhardt was killed. He testified, however, that he arrived home about 1:30 a. m. and promptly ...