Appeal, No. 199, Oct. T., 1956, from judgment of Court of Quarter Sessions of Montgomery County, Sept. T., 1955, in case of Commonwealth of Pennsylvania v. Lester Bishop. Judgment reversed.
William W. Vogel, with him Cassin W. Craig, and Wisler, Pearlstine, Talone & Gerber, for appellant.
Randolph A. Warden, Assistant District Attorney, with him Bernard E. Di Joseph, District Attorney, for appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Carr, JJ. (hirt, J., absent).
[ 182 Pa. Super. Page 152]
The question with which we are here concerned is whether a defendant, who has been indicted and acquitted on a charge of operating a motor vehicle while under the influence of intoxicating liquor, may be subsequently reindicted and convicted on a charge of operating the same motor vehicle at the same time and place while under the influence of a narcotic or habit producing drug. The factual situation is set forth in the following agreed statement of the case:
"On July 22, 1955 at approximately 5:30 P.M. Lester Bishop, the defendant, a resident of Souderton, Pennsylvania, while operating his automobile struck the rear of a truck operated by Charles E. White, Jr. which was proceeding South on Limekiln Pike at the intersection of Limekiln Pike and Norristown Road, Upper Dublin Township, Montgomery County, Pennsylvania. No one was personally injured, although there was some damage to defendant's car and the rear of the truck.
"The defendant was charged by the officers of the Upper Dublin Police of operating a vehicle while under
[ 182 Pa. Super. Page 153]
the influence of intoxicating liquor and the matter was returned to court as of No. 230, June Sessions, 1955. The bill of indictment stated that the defendant: 'Late of said County, yeoman, on or about the 22nd day of July in the year of Our Lord, One Thousand Nine Hundred and Fifty-five, with force and arms, etc., at the County aforesaid and within the jurisdiction of this Court, unlawfully did then and there, while under the influence of intoxicating liquor, operate a certain motor vehicle, contrary to the form of the Act of the General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania'.
"At the jury trial held on September 13th and 14th, 1955 before his honor, Judge GEORGE C. CORSON, the defendant testified having injected into himself a narcotic drug, namely, Demerol in accordance with his doctor's prescription in order to alleviate the terrible pain caused by the passing of kidney stones from which he suffered from time to time. The defendant also testified that he had drunk one shot of whisky after taking the Demerol shortly before the accident in order to alleviate the severe pain which had not yet subsided (N.T. 75, 87). It was the contention of counsel for the defendant that the cause of the accident was due to the defendant passing out from the use of Demerol rather than the fact that the defendant was under the sole or predominate influence of intoxicating liquor. The Commonwealth ...