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COMMONWEALTH v. BUSLER (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
BUSLER, APPELLANT



Appeal from order of Superior Court, April T., 1971, No. 1, affirming judgment of sentence of Court of Common Pleas of Armstrong County, March T., 1969, No. 166, in case of Commonwealth of Pennsylvania v. George T. Busler, Jr.

COUNSEL

James Victor Voss, with him Neely and Voss, for appellant.

D. Dale Claypool, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Bell and Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Eagen

[ 445 Pa. Page 360]

George T. Busler, Jr., was the operator of a motor vehicle involved in a fatal accident in Armstrong County, and was subsequently arrested and indicted for involuntary manslaughter. A non-jury trial resulted in a verdict of guilty, and after post trial motions were denied a prison sentence was imposed. On appeal, the Superior Court affirmed the judgment without opinion, 218 Pa. Superior Ct. 877, 279 A.2d 204 (1971). We granted allocatur, and now reverse because we are persuaded

[ 445 Pa. Page 361]

    the trial evidence was insufficient as a matter of law to establish guilt of the crime beyond a reasonable doubt.

In Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686 (1927), involuntary manslaughter was said to consist 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." See also Act of June 24, 1939, P. L. 872, 18 P.S. ยง 4703.

And, as stated in Commonwealth v. Holman, 160 Pa. Superior Ct. 211, 212, 50 A.2d 720 (1947): "Where the act in itself is not unlawful, that is, contrary to law, then to make it criminal, negligence must be such a departure from what would be the conduct of an ordinary prudent man under the same circumstances as to evidence a disregard of human life or an indifference to consequences."

Conduct made unlawful by The Vehicle Code is not necessarily the kind of "unlawful act" included within the definition of involuntary manslaughter, for in many instances the code makes unlawful, acts of ordinary negligence. Hence, to sustain a conviction of involuntary manslaughter for a death resulting from an act which constitutes a transgression of The Vehicle Code, it must be established that such violation in itself, or together with the surrounding circumstances, "evidence a disregard of human life or an indifference to consequences." See Commonwealth v. Clowser, 212 Pa. Superior Ct. 208, 239 A.2d 870 (1968); and, Commonwealth v. Holman, supra.

The evidence in this case, viewed in a light most favorable to the Commonwealth, fails to establish beyond a reasonable doubt the existence of the necessary "disregard of ...


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