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COMMONWEALTH v. CLOWSER (03/21/68)

decided: March 21, 1968.

COMMONWEALTH
v.
CLOWSER, APPELLANT



Appeal from judgment of Court of Quarter Sessions of Chester County, Nov. T., 1963, No. 167, in case of Commonwealth of Pennsylvania v. Curtis E. Clowser.

COUNSEL

John A. Luchsinger, with him Frank M. Jakobowski, for appellant.

A. Thomas Parke, III, Assistant District Attorney, with him Alfred Delduco, District Attorney, for Commonwealth, appellee.

Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Hoffman, J.

Author: Hoffman

[ 212 Pa. Super. Page 209]

The defendant, Curtis E. Clowser, was indicted and convicted of involuntary manslaughter on March 4, 1966. He was sentenced to probation for a period of three years and a fine in the amount of $500.00.

The above conviction resulted from the death of James Roberts in an automobile accident. This death occurred on December 14, 1963, at approximately 11:30 p.m., at the intersection of Routes 10 and 30 in Chester County, Pennsylvania. The decedent was operating his vehicle in the northern-most westbound lane of Route 30, a four lane divided highway running east and west. Defendant was operating his vehicle in a northerly direction on Route 10, a two-lane highway running north and south. Defendant was accompanied by his wife, who was killed in the collision, and his four children, all of whom sustained varying degrees of injuries. The intersection of Routes 10 and 30 was controlled by a "Stop" sign for Route 10, thereby making Route 30 a through highway.

[ 212 Pa. Super. Page 210]

The point of impact occurred in the northernmost lane of the two westbound lanes of Route 30. Route 30 is 92 feet in width at this point and approximately 150 feet from the stop sign on Route 10. Thus, defendant had crossed about seven-eighths of Route 30 before he was struck by the decedent's vehicle.

The lower court, sitting without a jury, found that defendant failed to yield the right of way as required by The Vehicle Code, Act of April 29, 1959, P. L. 58, ยง 1016(a), 75 P.S. 1016(a). The lower court further found that a violation of this provision of The Vehicle Code is the doing of an unlawful act, and that defendant's conduct was the "legal cause" of Robert's death. It found, therefore, defendant guilty of involuntary manslaughter under the definition in Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961). That case stated: "Involuntary manslaughter consists in 'the killing of another without malice and unintentionally, but [1] in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, . . .'" Concurring opinion by Bell, C. J.

The court below specifically noted in its opinion that "We need not go further to determine whether that conduct was rash or reckless or grossly negligent since that type of conduct is only necessary for a conviction in those cases dealing with deaths resulting from negligent conduct on the part of the defendant; it is not necessary where the conduct is unlawful such as that with which we are now dealing."

The principal question before us is whether a violation of the above provision of The Vehicle Code, without a finding of wanton or reckless conduct, is, per se, sufficient to sustain a conviction of involuntary manslaughter.

Our research has disclosed that our Courts have put increasing emphasis upon rashness and recklessness as a requisite for a ...


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