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COMMONWEALTH v. BUTTS (11/12/64)

decided: November 12, 1964.

COMMONWEALTH
v.
BUTTS, APPELLANT



Appeals from judgments of Court of Quarter Sessions of Philadelphia County, May T., 1962, Nos. 329 and 330, in case of Commonwealth of Pennsylvania v. George T. Butts.

COUNSEL

Robert N. C. Nix, Jr., for appellant.

Thomas M. Reed, Chief Assistant District Attorney, with him Gordon Gelfond and Vincent C. Veldorale, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

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

Author: Wright

[ 204 Pa. Super. Page 304]

In the late afternoon of November 27, 1961, on Twenty-First Street in the City of Philadelphia, south of the intersection at Delancey Place, a 1953 Dodge sedan owned and operated by George T. Butts collided with a pedestrian, Romeo Minero, a thirteen year old boy. The Dodge car then struck a 1952 Ford sedan parked at the east curb, forcing it into another parked car. Immediately after the collision the boy's body was found lying on the trunk of the Ford automobile. The boy was taken to Graduate Hospital, where he was pronounced dead on arrival. At May Sessions 1962, the Grand Jury returned three bills of indictment against Butts as follows: Bill No. 329 charged voluntary manslaughter in the first count, and involuntary manslaughter in the second count; Bill No. 330 charged the operation of a motor vehicle while under the influence of intoxicating liquor; Bill No. 331 charged murder. On March 9, 1964, Butts appeared with counsel before Honorable Mark E. Lefever, specially presiding, entered pleas of not guilty, and waived his right to jury trial. Before calling any witnesses, and with leave of court, the District Attorney entered a nol. pros. as to Bill No. 331 and as to the first count in Bill No. 329. Butts was adjudged guilty as to the second count in Bill No. 329, and as to the charge in Bill No. 330. Motions for a new trial and in arrest of judgment were refused by the court en banc, and sentences were imposed. These appeals followed.

A comprehensive review of the Commonwealth's testimony is set forth in the opinion below, and will be quoted in the paragraphs next following. So far as the defense was concerned, Butts did not take the stand

[ 204 Pa. Super. Page 305]

    and the only testimony adduced was that of three character witnesses.

"Twenty-first Street is a one way street south. It is 26 feet wide, with a 12 foot east sidewalk. Delancey Place is 16 feet wide, with a 10 foot south sidewalk. On the east side of 21st Street, south of Delancy Place, were several parking meters and a City sign reading: 'Two-hour meter parking.' There were traffic signal lights at 21st and Spruce Streets and at 21st and Pine Streets, the streets immediately north and south of Delancey Place (a mid-block street) . . .

"There were no eye witnesses to the collision. However, Patricia Dolan, who lived on the third floor apartment of the building at the southeast corner of Delancey Place and 21st Street, testified that at about 5:50 P.M., that evening 'having been aware of a tremendous crash. I went to the window and I remember a body going up into the air and landing on the trunk of a car.' The defendant's 'black car . . . is the one that hit the Ford in the front.' She immediately notified the police by telephone.

"Police officers arrived at the scene of the accident a few moments later. The weather was dry and clear. It was 'getting dark' and the street lights were lit. Testimony of the officers and the photographs, which were admitted into evidence, indicate that the front of defendant's car was headed diagonally into the rear of the Ford in a southeasterly direction, with its front end 46 feet south of the south curb of Delancey Place; that its left front wheel was almost against the curb; and that two or three wheels of the Ford were pushed up over the curb onto the east sidewalk, between the parking meter and the sign. Defendant's car was badly smashed in front, particularly on the ...


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