Appeal, No. 294, Oct. T., 1956, from order of Court of Quarter Sessions of Montgomery County, Sept. T., 1955, No. 183, in case of Commonwealth of Pennsylvania v. James Joseph Bolger. Order reversed.
Herbert C. Nelson, Assistant District Attorney, with him Bernard E. DiJoseph, District Attorney, for appellant.
James P. Geoghegan, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 182 Pa. Super. Page 311]
This is an appeal from a decree of the lower court dismissing the Commonwealth's exception to the action of that court wherein it sustained defendant's demurrer.
Defendant was indicted in one bill charging failure to stop at the scene of a motor vehicle accident and failure to exhibit operator's license and to give identification at the scene of an accident. Act of May 1, 1929, P.L. 905, Art. X, § 1025, as amended, 75 PS § 634.
The evidence, considered in the light most favorable to the Commonwealth, was that at about 4:00 a.m. Sunday, October 2, 1955, John Bodnar was driving his Mercury automobile in an easterly direction on the right-hand side of West Elm Street in the Borough of Conshohocken. Another car was approaching him from the opposite direction and this car struck Bodnar's automobile, damaging the entire left side of same. The other car was not stopped at the scene. Bodnar did not get the license number of the other car. He immediately reported the matter to the Conshohocken police
[ 182 Pa. Super. Page 312]
and Officer Bland took Bodnar in his police car and cruised around in an effort to locate the other car. The following Tuesday, October 4, 1955, Bodnar, in examining his car, found a piece of chrome embedded under the left front fender. On Friday of the same week other pieces of chrome were found at the scene of the accident. These pieces of chrome were delivered to the Conshohocken police. The police, in their investigation, located an Oldsmobile convertible parked in front of the defendant's home, a short distance from the scene of the accident. This car was damaged on the left side and appeared to have been in a recent accident. The police then checked the chrome which had been turned over to them and found that several pieces fitted exactly on the defendant's car. The police testified that the victim's car was painted a dark metallic green and that the defendant's automobile was painted a light pea green. It was testified that on a piece of chrome which fitted the defendant's car was what appeared to be dark metallic green paint similar to the color of the paint on the victim's car. Testimony also showed that on the left side of the defendant's car there was dark metallic green paint in sports similar to the color of the paint on the victim's car. There was also found light green paint in spots on the left side of the victim's car similar in color to the paint of the defendant's car. The police secured the license number of the defendant's car, which was Pa. JC344. It was ascertained that this license number had been issued to the defendant. Upon the presentation of this testimony the Commonwealth rested. The defendant thereupon demurred, which demurrer was sustained by the court. The Commonwealth excepted to the action of the court in sustaining the demurrer of the defendant. Argument was had before the lower court in banc and that court, in
[ 182 Pa. Super. Page 313]
an opinion written by the trial judge, dismissed the Commonwealth's exception. The lower court, in its opinion, stated that "A jury could not without conjecture or surmise reach the conclusion that (1) Bolger's car was the vehicle involved in the accident on October 2, 1955, and (2) that Bolger was the driver of that car without entertaining a reasonable doubt as to one or both of these essential factors" and that "It is ...