
    Commonwealth v. Marks.
    
      John G. Love, District Attorney, for Commonwealth.
    
      A. C. Dale, for defendant.
    Dec. 28, 1928.
   Fleming, P. J.,

The defendant is charged with a violation of section 1012 (b) of the Motor Vehicle Act of 1927, which provides as follows: “The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction upon the crest of a grade or upon a curve in the highway where the driver’s view along the highway is obstructed within a distance of three hundred (300) feet ahead.”

The specific time of the alleged violation is Aug. 19, 1928, and the place Potter Township, this county. It appears that a former charge for the same offense was filed in Mifflin County, alleging that the same occurred on the same date in Armagh Township, Mifflin County. The testimony of the prosecutor, in explanation of this unusual condition, is that he made a mistake in filing the information in Mifflin County. The Mifflin County information is dated Aug. 20, 1928, while that in the instant case was not made until Aug. 31, 1928. In the meanwhile, defendant received and answered a notice from the Mifflin County authorities, going to Lewistown in person, only to be advised that the prosecution then had been withdrawn or words to that effect.

From the testimony adduced, we must accept the story, which is corroborated by a disinterested witness, and find the defendant guilty.

We must, however, register our disapproval of the error in locating the situs of the offense and consider the trouble, annoyance and expense to which the defendant — personally known to us to be a careful, conservative and law-abiding citizen — has been put by the error of the prosecutor, which has been explained only by saying that he confused his arrests for that day. Motorists must be protected from such annoyance, and while it is our duty, under the evidence, to find the defendant guilty, we must in some manner penalize the Commonwealth for its laxity in locating the proper jurisdiction. We, therefore, make the following order:

And now, Dec. 28, 1928, after hearing, the defendant is adjudged guilty of a violation of section 1012 (b) of the Motor Vehicle Act of 1927, and is sentenced to pay the costs of prosecution, a fine of $10, and upon non-payment thereof, to undergo imprisonment in the county jail for a period of five days, the said fine and alternative imprisonment, however, to be remitted upon payment of costs of prosecution.

Prom S. D. Gettig, Bellefonte, Pa.  