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COMMONWEALTH v. SMOKER (09/17/64)

decided: September 17, 1964.

COMMONWEALTH
v.
SMOKER, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Lancaster County, March T., 1963, No. 173, in case of Commonwealth of Pennsylvania v. Lloyd Smoker.

COUNSEL

John W. Beyer, with him Joseph J. Lombardo, and Arnold, Bricker, Beyer & Barnes, for appellant.

Theodore A. Parker, Assistant District Attorney, with him Wilson Bucher, District Attorney, for Commonwealth, appellee.

Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (Rhodes, P. J., absent). Opinion by Flood, J.

Author: Flood

[ 204 Pa. Super. Page 267]

The defendant was found guilty of involuntary manslaughter and the court below refused his motion to arrest judgment or grant a new trial. Mrs. Pennington was killed as a result of a head-on collision between the car in which she was riding and the car driven by the defendant which had crossed into the wrong lane. The defendant argues that there is no proof that he did an intentional act which constituted a crime; that proof that he was asleep is insufficient to support the conviction in the absence of some negligent conduct inducing sleep; and that the mere presence of his car on the wrong side of the road is not sufficient to sustain the conviction.

These contentions are largely answered by the definition of involuntary manslaughter under Pennsylvania law. The usual definition is set forth in Commonwealth v. Flax, 331 Pa. 145, 156, 200 A. 632, 637 (1938), as follows: "[A]ll such killings as result unintentionally and without malice from the commission of unlawful but nonfelonious acts not naturally tending to cause death or great bodily harm, or the negligent performance of acts which are not unlawful per se, or by the negligent omission to perform a legal duty."*fn1 This definition was reaffirmed by this court

[ 204 Pa. Super. Page 268]

    in Commonwealth v. Root, 191 Pa. Superior Ct. 238, 156 A.2d 895 (1959). Although this case was reversed on other grounds, Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961), this definition was in no way modified.

Involuntary manslaughter may thus be based upon the negligent performance of an act not harmful per se or a negligent omission to perform a legal duty. Negligent killing in the course of a failure to obey the law is sufficient under this definition. The trial court went beyond what defendant was entitled to under this definition and charged that the defendant's conduct must be rash or reckless.

While admitting that a specific intent to kill or harm is not required for conviction of this crime, the defendant contends that there must at least be an intent to do what he did. If he means by this that he must have intentionally driven into the wrong lane, this is not the law. It is enough that he intentionally drove his car and recklessly failed to drive it in its proper lane, driving it instead, because of inattention to what he was doing, into the wrong lane. This case in no way resembles the cases which the defendant cites. Commonwealth v. Koczwara, 397 Pa. 575, 155 A.2d 825 (1959), was a case involving vicarious liability. Commonwealth v. Unkrich, 142 Pa. Superior Ct. 591, 16 A.2d 737 (1940), involved an act made unlawful only by a fact which the defendant did not know and could not be expected to know.

Of course, the burden was upon the Commonwealth to prove his guilt beyond a reasonable doubt, but under the evidence the jury was warranted in finding that it did so. The mere fact that he drove on the ...


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