Appeal, No. 167, Oct. T., 1957, from judgment of Court of Quarter Sessions of the Peace and Oyer and Terminer of Lancaster County, March T., 1956, No. 27, in case of Commonwealth of Pennsylvania v. R. H. Mummert. Judgment affirmed.
James P. Coho, for appellant.
Richard M. Martin, Assistant District Attorney, with him William C. Storb, District Attorney, for appellee.
Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).
[ 183 Pa. Super. Page 640]
R. H. Mummert, was indicted for operating a motor vehicle while under the influence of intoxicating liquor and was convicted by a jury. The lower court refused a motion for a new trial. The defendant was sentenced to pay a fine of $200 and costs of prosecution. This appeal followed.
This prosecution grew out of a vehicular accident that occurred on November 24, 1955 between 2:30 and 3:00 p.m., in the City of Lancaster. The defendant's truck collided with the car of Ray Albright. Albright got out of his car and went to the truck of the defendant to learn the cause of the accident, his identity and other pertinent information, but found the defendant incapable of carrying on a conversation. The defendant mumbled incoherently and appeared to be in a stupor and was very confused; merely shook his head to questions asked. Albright detected the odor of alcohol on his breath. He secured the information concerning the defendant from the license plate on the truck and some printing on the door of defendant's vehicle. Before the police could be notified the defendant, without warning, left the scene of the accident, and as observed by Albright, weaved as he drove down the street. The police were notified and found the defendant at his home at 4:05 p.m. He was lying across a bed fully clothed. He was hardly able to stand when
[ 183 Pa. Super. Page 641]
aroused and had to be assisted in order to walk. The police gave him the usual intoxication tests. This took place at about 4:20 p.m., and consisted of smelling defendant's breath, which had a strong odor of alcohol; having the defendant walk a straight line and other simple exercises. He was described as having blood shot eyes, staggering as he walked and several times nearly falling over. He admitted that he had been drinking, having started at 1:30 p.m., and having his last drink about 3:30 p.m. At 4:45 p.m., the defendant voluntarily submitted to a drunkometer test. The test showed a blood alcohol percentage of .230 or 23/100 of 1% alcohol and that he was under the influence of intoxicating liquor according to the standards prescribed by this test. He admits that he was under the influence of alcohol at 4:45 p.m., when he was given the drunkometer test but denies he was under the influence of alcohol at the time of the accident.
Defendant's appeal from the refusal of the court below to grant a new trial raises 7 questions. We shall consolidate the questions raised and discuss them in three parts for the purpose of this opinion.
Defendant's contention that the court below erred in refusing to sustain defendant's demurrer at the close of the Commonwealth's case is without merit, for in deciding the propriety of overruling a demurrer, all the facts which the evidence tends to prove and inferences reasonably deducible therefrom, are admitted. Com. v. Waters, 148 Pa. Superior Ct. 473, 25 A.2d 756 (1942). The burden of the Commonwealth as to sufficient evidence of intoxication is clearly set forth in the case of Com. v. Buoy, 128 Pa. Superior Ct. 264 (1937), where Judge RHODES states at page 267: "The expression, ...