Appeal, No. 43, April T., 1961, from judgment of Court of Quarter Sessions of the Peace of Allegheny County, Feb. T., 1960, No. 386, in case of Commonwealth of Pennsylvania v. Earl F. Buckley. Judgment reversed.
Homer W. King, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 267]
Earl F. Buckley was brought to trial in the Court of Quarter Sessions of Allegheny County on a bill of indictment charging in count 1 that he failed to stop his motor vehicle at the scene of an accident; and in count 2 that he failed to give his name, address, and the registration number of his vehicle, and to exhibit his operator's license. The jury returned a verdict of guilty on both counts. The court en banc arrested judgment as to the first count, but overruled defendant's motion in arrest of judgment and for a new trial as to the second count. Sentence was imposed, and this appeal followed.
We have been handicapped in our consideration of this appeal because of the inadequate and confused record. The trial was not reported, a practice of which we do not approve. The opinion below states that the indictment was drawn under Section 1025 of The Vehicle Code of May 1, 1929, P.L. 905, whereas the legislative provision in effect at the time of the alleged offense
[ 197 Pa. Super. Page 268]
was Section 1027 of The Vehicle Code of April 29, 1959, P.L. 58 (75 P.S. 1027). However, the language of the two sections is identical and, in our view of the case, this discrepancy is not material. Counsel have agreed upon a "stipulation of facts in lieu of record", the pertinent portion of which is as follows:
"Earl F. Buckley, defendant, aged 40, on January 30, 1960, shortly after midnight, was driving north on Craig Street and stopped for the red light at the intersection of Craig Street and Fifth Avenue, both public thoroughfares in the City of Pittsburgh. Both thoroughfares are practically level at this particular point. While waiting for the light to turn green, defendant felt a slight bump on the rear of his Corvette automobile. The bump was caused by a Thunderbird automobile operated by one Richard Tissue, aged 22, who, with his friends, was on his way home from a bowling banquet. Mr. Buckley and Mr. Tissue each got out of their respective automobiles. Mr. Buckley accused Mr. Tissue of running into him from the rear and Mr. Tissue claimed Mr. Buckley had backed into the front of the Thunderbird. There were some harsh words between them as they stood in the street and discussed the matter for several minutes, after which Mr. Buckley got into his automobile and proceeded home. The next the defendant heard of this matter was three or four hours later when a policeman appeared at his front door and escorted him to a police station. Mr. Buckley stated he had observed no damage to the rear of his automobile nor to the front of Mr. Tissue's automobile and had so stated at the time. Mr. Tissue testified he had made no claim for any damage at the time of the collision but denied he had stated that there was no damage to either car. Mr. Tissue stated that his car had been damaged in the front end to the extent of $88.00 and it was to collect that sum that he had brought the prosecution".
[ 197 Pa. Super. Page 269]
Appellant's principal contention on this appeal is that the trial judge erred in failing to charge the jury concerning the requirements to support a conviction on the second count. It is apparent that appellant did not fail to stop his vehicle at the scene of the accident. This is confirmed by the notes of the trial judge, to which reference is made in the opinion below. The first count should therefore not have been submitted to the jury, and the law relating to the second count should have been carefully explained. It was essential that the jury be informed of the Commonwealth's burden to establish knowledge: Commonwealth v. Hyman, 117 Pa. Superior Ct. 585, 178 A. 510.And see Commonwealth v. Adams, 146 Pa. Superior Ct. 601, 23 A.2d 59. The statute expressly provides that identification need not be given if there is a disclaimer of injuries and damages.*fn1 At the conclusion of the charge, according to the stipulation, the following colloquy occurred: "By counsel for defendant: Your Honor did not charge on the second portion ... relating to the duty when ...