
    Commonwealth v. Crockett, Appellant.
    
      Submitted March 28, 1974
    Before Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
    
      Drew Saloman, Dennis Kelly, and John W. Packet, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
    
      David lUchman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
    June 21, 1974:
   Opinion by

Jacobs, J.,

The issue on this appeal is whether the proceedings before the Municipal Court of Philadelphia sustain appellant’s conviction under §1037 of The Vehicle Code which makes it unlawful to operate a motor vehicle while under “the influence of intoxicating liquor or any narcotic drug or habit producing drug.”

Appellant was convicted of the violation of §1087 by a judge of the Municipal Court of Philadelphia. At trial, the only testimony offered by the Commonwealth was that of the arresting officer who stated that “[appellant’s vehicle] was swaying back and forth in the oncoming traffic.” After he observed this, the arresting officer stopped the vehicle and arrested appellant. The officer further testified that appellant fell to the ground as he got out of the vehicle and tried to talk, but could only mumble incoherently. The only other evidence presented by the Commonwealth was a stipulated report by a doctor who examined appellant. The doctor concluded that appellant was under the influence of narcotic drugs and at that time not able to properly operate a motor vehicle; that the drug used was known as “red devil;” and that in his opinion defendant was under the influence of narcotic drugs. The Commonwealth attorney and defense counsel, however, stipulated that “red devils are amphetamines and are not a narcotic drug.” The Commonwealth then rested its case. After listening to the arguments of counsel, the municipal court overruled defense counsel’s demurrer to the evidence and found appellant guilty. In denying certiorari, the common pleas court held that driving under the influence of amphetamines warranted his conviction.

We must first recognize that §1037 of The Vehicle Code is penal in nature and must be strictly construed. See Commonwealth v. Kubelius, 209 Pa. Superior Ct. 535, 232 A.2d 39 (1967); Commonwealth v. Anspach, 134 Pa. Superior Ct. 369, 4 A.2d 203 (1938). After charging appellant with a violation of §1037, it was incumbent upon the Commonwealth to prove that appellant was driving under the influence of “intoxicating liquor or any narcotic drug or habit producing drug.” The Commonwealth produced evidence that appellant wag driving under the influence of “red devils,” an amphetamine, which the examining doctor stated placed appellant under the influence of narcotic drugs. But the Commonwealth also stipulated that such a drug was not narcotic. “ ‘When a party on whom rests the burden of proof in either a criminal or a civil case, offers evidence consistent with two opposing propositions, he proves neither.’ Commonwealth v. New, 354 Pa. 188, 221, 47 A.2d 450, 468 (1946).” Commonwealth v. Zeringo, 214 Pa. Superior Ct. 300, 304, 257 A.2d 692, 694 (1969). These two inconsistent stipulations negated any proof that “red devils” are a narcotic drug. Moreover, it should be noted that The Controlled Substance, Drug, Device and Cosmetic Act makes no reference to amphetamines (red devils) as narcotic drugs, and the prior law under The Drug, Device and Cosmetic Act labeled amphetamines as “dangerous drugs” and not “narcotic drugs.” Even their medical definitions demonstrate the difference between narcotics and amphetamines. An amphetamine is a substance “used to stimulate the central nervous system” while a narcotic is “[a]n agent that produces insensibility or stupor.” [Emphasis added.] Dorland’s Illustrated Medical Dictionary 70, 982 (24th ed. 1965). Although the Commonwealth attorney argued that amphetamines were habit producing, absolutely no evidence was introduced to support that view.

The court of common pleas found that the purpose of §1037 was to prohibit driving under the exposure of this type of drug. However, our Court has already reviewed the history of this law. In Commonwealth v. Schuler, 157 Pa. Superior Ct. 442, 446, 43 A.2d 646, 648, allocatur refused, 158 Pa. Superior Ct. xxv (1945), our Court, after noting that the prior law made it illegal to operate a motor vehicle “when intoxicated,” stated that the subsequent legislation “by mentioning the modes by which the influence was engendered, and, by specifying them, excluded all other modes” [Emphasis added.]

At trial, “red devils,” the drug of which appellant was under the influence, were not shown to be either a “narcotic” or “habit producing” drug. Therefore, the Commonwealth has fatally failed in its burden of proof and appellant’s conviction cannot stand.

The order of the Court of Common Pleas of Philadelphia County is reversed; the sentence of the Municipal Court of Philadelphia is vacated and the appellant discharged. 
      
       Act of April 29, 1959, P. L. 58, §101 et seq., 75 P.S. §101 et seq.
      
     
      
       His petition for a writ of certiorari was denied by tbe court of common pleas which upheld the decision of the municipal court.
     
      
       Act of April 14, 1972, P. L. 233, No. 64, §1 et seq., 35 P.S. §780-101 et seq.
      
     
      
       Act of September 26, 1961, P. Ij. 1664, §1 et seq., 35 P.S. §780-1 et seq.
      
     
      
       Act of July 7, 1913, P. It. 672, §16.
     
      
       Act of June 29, 1937, P. L. 2329, §620(f), which is almost identical to the present §1037 of The Vehicle Code, Act of April 29, 1959, P. L. 58, 75 P.S. §1037.
     