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COMMONWEALTH v. JENKINS (01/21/58)

January 21, 1958

COMMONWEALTH
v.
JENKINS, APPELLANT.



Appeal, No. 100, April T., 1957, from judgment of Court of Quarter Sessions of Allegheny County, Sept. T., 1955, No. 240, in case of Commonwealth of Pennsylvania v. Charles Jenkins. Judgment reversed.

COUNSEL

I. Elmer Ecker, with him William J. LeWinter, for appellant.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Watkins

[ 185 Pa. Super. Page 578]

OPINION BY WATKINS, J.

This is an appeal from the judgment of sentence of the county court of Allegheny County. The appellant was found guilty of operating a motor vehicle while under the influence of intoxicants, contrary to the provisions of the Act of May 1, 1929, P.L. 905, Art. VI, (f), 75 PS ยง 231 (f) as amended.

The act complained of occurred on the morning of June 5, 1955. On that date the appellant, in the company of two other men, Leon McCready and William Rae, was in an automobile owned by the appellant when the vehicle came into collision with the parked car of Mrs. Anna R. Burdak. The police were called and the appellant was arrested on the above charge.

[ 185 Pa. Super. Page 579]

At the trial appellant waived his right to trial by jury and the cause came to be heard by Judge O'CONNOR, who found the appellant guilty and sentenced him to pay a fine of $100 and costs. Motions for a new trial and arrest of judgment were argued before the court en banc and refused on February 4, 1957.

The appellant complains of the refusal of the court below to sustain his demurrer at the close of the Commonwealth's case. At this time, he contends, the only facts before the court were, that an accident had occurred; that an officer found three men at the scene of the accident; that the appellant was sent to a medical examiner to determine if he were intoxicated; and that no evidence was presented that he was driving the automobile or that he was intoxicated.

If we accept this statement of the record as true, and if the appellant had rested at this point, then we agree with the appellant that the verdict and sentence must be vacated. But the appellant did not rest, but put his evidence into the record. We must look, therefore, to the entire record in determining this appeal.

At the hearing, no request was made for an official record to be made and none was made. All this Court has before it are brief notes taken by a court stenographer. The appellant made no request that a transcript of the testimony be made. It is true that if there is sufficient evidence presented in this case to sustain the conviction, the ...


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