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COMMONWEALTH v. HORN (06/19/58)

June 19, 1958

COMMONWEALTH
v.
HORN, APPELLANT.



Appeal, No. 82, Oct. T., 1958, from judgment of Court of Quarter Sessions of Philadelphia County, Feb. T., 1957, No. 846, in case of Commonwealth of Pennsylvania v. Robert Horn. Judgment affirmed.

COUNSEL

Louis Lipschitz, for appellant.

Domenick Vitullo, Assistant District Attorney, with him Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hort, J., absent).

Author: Woodside

[ 186 Pa. Super. Page 431]

OPINION BY WOODSIDE, J.

The appellant was tried before a judge without a jury on a charge of operating a motor vehicle while under the influence of intoxicating liquor, in violation of the Act of May 1, 1929, P.L. 905 § 620(f) as amended, 75 PS § 231(f). He was found guilty and sentenced to six months in jail and a fine of $500.*fn1 He has appealed this sentence, contending that the trial court should have granted his motion in arrest of judgment, or at least his motion for a new trial.

[ 186 Pa. Super. Page 432]

The defendant was operating his automobile at approximately one o'clock in the morning on a wet, foggy night in the City of Philadelphia. While driving the wrong direction on a one way street, he passed a stop sign without stopping and struck the rear side of another automobile with such force that three children were thrown from it to the street and injured. He admitted that he had been drinking an alcoholic beverage. Odor of alcohol was on his breath. The driver of the automobile which the defendant's car struck testified that the defendant staggered. The defendant appeared "dazed" to a policeman and to the victim. Another policeman, who did not see the defendant until over an hour after the accident, testified that the defendant's face was flush, his eyes bloodshot, and his speech thick. The policeman further testified that in his opinion the defendant was under the influence of intoxicating liquor.

The defendant was examined by a police surgeon in a police station for 10 to 15 minutes starting at 2:35 A.M. This was more than an hour and a half after the accident. The surgeon said that in his opinion the defendant, although having been drinking intoxicants, was not at that time under the influence of intoxicating liquor, and was mentally and physically capable of driving a vehicle safely in traffic.

This, of course, conflicted with other testimony. It was for the fact finder, in this case the trial judge, to determine which was the more credible testimony. The judge indicated that he believed the police officers. We might also note that it would have been possible for the defendant's condition to have changed from being under the influence of intoxicating liquor to sobriety between the time of the accident and the time of the examination by the physician.

[ 186 Pa. Super. Page 433]

A physician's opinion on the question of intoxication is ordinarily entitled to greater weight than that of a layman, but the credibility of all the evidence is for the fact finder. The judge had the right to believe the testimony of the lay witnesses and reject the testimony of the police surgeon, or he had the right to conclude that the defendant was under the influence of intoxicating liquor at the time of the accident even ...


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