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COMMONWEALTH v. SMITH (01/19/54)

January 19, 1954

COMMONWEALTH
v.
SMITH



COUNSEL

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.

Author: Ross

[ 174 Pa. Super. Page 534]

ROSS, Judge.

Alvin Smith was tried and convicted before a judge and jury in the Court of Quarter Sessions of

[ 174 Pa. Super. Page 535]

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

[ 174 Pa. Super. Page 536]

    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 ...


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