Appeal, No. 410, Oct. T., 1959, from judgment of Court of Quarter Sessions of Chester County, Sept. T., 1957, No. 335, in case of Commonwealth of Pennsylvania v. Leroy W. Root. Judgment affirmed.
Franklin L. Gordon, with him Gordon & Gordon, for appellant.
Alfred Delduco, Assistant District Attorney, with him John E. Stively, District Attorney, for appellee.
Before Gunther, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., and Hirt and Wright, JJ., absent).
[ 191 Pa. Super. Page 240]
This is an appeal from the judgment of sentence imposed upon the defendant after his conviction by a jury on the charge of involuntary manslaughter. He contends here, as in the court below, that judgment should be arrested, or in lieu thereof, a new trial should be granted.
Except for relatively unimportant details there is no serious conflict in the evidence. The jury would be justified in finding the following facts: After 1 o'clock in the morning of May 25, 1957, Leroy W. Root, the defendant, Lewis Hall, who was killed in an automobile accident later that morning, and several of their fellow employes at the Downingtown Paper Box Company, congregated at the "Ranch," near the western border of Downingtown. There they drank intoxicants. In a statement made to the police, the defendant admitted having eight or ten glasses of beer. They were all "feeling pretty good."
At approximately 3 o'clock in the morning, Root with two friends left the Ranch in his car and headed west on Route 30. At the same time, Hall left in his car in the same direction. As they were leaving, Hall suggested to the defendant that they race to Coatesville. Root rejected the idea, and followed Hall slowly through the nearby village of Thorndale. Hall then waved to the defendant to pass him. Thereupon, the defendant passed Hall, and they both "took off." They raced for several miles at a speed estimated at from 70 to 90 miles an hour. The defendant, himself, indicated his speed exceeded 90 miles per hour. Hall followed close behind the defendant.
Route 30 is a three lane road between Downingtown and Coatesville, and is probably the most heavily travelled east-west state highway in the Commonwealth. There is evidence that at least three trucks
[ 191 Pa. Super. Page 241]
and another car were on the highway within the immediate area while the cars were racing.
As the speeding cars passed the entrance to the Veterans Administration Hospital east of Coatesville, where the road is lined into two lanes, the defendant was on his side of the highway ahead of Hall. They had just passed a truck going in the same direction. Whether Hall was directly back of the defendant and pulled out in an effort to pass, or whether he was at the defendant's side with his front wheels even with the defendant's back wheels, is not clear. The defendant indicated in his statement to the police that as the speeding cars approached the bridge over the railroad, he "dropped off" his speed to 90 miles an hour. Hall never passed the defendant, but in an effort to do so, ran head-on into a truck in the eastbound lane, being properly operated in the opposite direction. Hall's car struck the truck with such force that the car's engine was torn from the automobile and thrown over 30 feet from it. Hall was dead when taken from the wreckage.
The truck "jack-knifed" across the westbound lane, but the defendant's car, which was slightly ahead of the deceased's car at the moment of collision, passed the truck without contacting either it or the deceased's car. The defendant did not stop. He took a circular route to return to the scene of the accident so that he would approach it from the east, but seeing an officer diverting traffic, he did not approach the scene. He drove close enough to see that the wrecked car was Hall's, but he did not learn of Hall's fate that night.
Several days later the defendant was taken into custody by the police, to whom he gave a statement substantially admitting the above facts.
After the jury found him guilty he made motions in arrest of judgment and for a new trial. The court below
[ 191 Pa. Super. Page 242]
refused both motions and sentenced him to pay a fine of $500 and serve nine months in jail. He thereupon appealed to this Court.
Section 703 of the Act of June 24, 1939, P.L. 872, 18 PS § 4703, provides, "Whoever is convicted of involuntary manslaughter, happening in consequence of an unlawful act, or the doing of a lawful act in an unlawful way, is guilty of a misdemeanor..." The statute attempts to partially, but not fully, define the misdemeanor.
The generally accepted definition of involuntary manslaughter used by the Appellate Courts in Pennsylvania is as follows: "Involuntary manslaughter consists in the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty."*fn1 Commonwealth v. Comber,
[ 191 Pa. Super. Page 243374]
Pa. 570, 580, 97 A.2d 343 (1953); Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686 (1927); Commonwealth v. Piper, 183 Pa. Superior Ct. 229, 232, 130 A.2d 195 (1957).
Hall was killed while the defendant was racing him in a motor vehicle on a public highway. The defendant was doing an unlawful act by participating in a race or speed contest with a motor vehicle on a highway. He was guilty of the statutory offense of reckless ...