Winston v. Commonwealth
| Citation | 49 S.E.2d 611,188 Va. 386 |
| Parties | WINSTON. v. COMMONWEALTH. |
| Decision Date | 11 October 1948 |
| Court | Supreme Court of Virginia |
Error to Circuit Court, Charlotte County; Joel W. Flood, Judge.
Francis Allen Winston was convicted of unlawfully driving or operating an automobile on a state highway while under the influence of intoxicating liquor, and he brings error.
Reversed and dismissed.
Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.
James W. Blanks, of Clarksville, and John Y. Hutcheson, of Boydton, for plaintiff in error.
J. Lindsay Almond, Jr., Atty. Gen., and Ballard Baker, Sp. Asst. to Atty. Gen., for the Commonwealth.
This writ of error brings under review a judgment entered upon the verdict of a jury convicting Francis Allen Winston, hereinafter called the defendant, of unlawfully driving or operating an automobile on a State highway while under the influence of intoxicating liquor, in violation of the Act of 1934, ch. 144, p. 220, as amended by the Act of 1940, ch. 87, p. 121, Michie's Code of 1942, § 4722a. By its terms the violation of the statute is made a misdemeanor, punishable by a fine or imprisonment, or both, in the discretion of the court or jury.
It is conceded that the evidence adduced before the jury was sufficient to sustain a conviction, but the main contention is that the defendant was not convicted by due process of law, in that the conduct of the officer who made the arrest, and that of the deputy sheriff or jailer into whose custody the defendant was delivered, were such as to deprive him of his constitutional right to call for evidence in his favor.
On Sunday afternoon, October 5, 1947, E. T. Keister, an officer in the Department of State Police, while patrolling a portion of Highway No. 360, in Charlotte county, had his attention attracted to the reckless operation of a passing automobile. He overtook the vehicle and found that it was being driven by the defendant, Winston, who was accompanied by a single passenger, Clifton Granger.
According to the testimony of Keister, the patrolman, both Winston and Granger were "very drunk." Two bottles of whiskey were found in the car, one unopened and the other partly filled. Both men were placed under arrest, were required to get into the rear seat of the patrolman's car, and were driven to Charlotte Court House, about twenty-two miles away, where they were delivered to the deputy sheriff or jailer and locked up at 4:30 p. m.
Both at the time of his arrest and during the trip to the jail the defendant, Winston, protested to the arresting officer that he was not intoxicated, that he had not taken any intoxicant of any kind during the whole day, and asked to be taken to a physician in order that he might be examined and his true condition determined. This request was ignored by Keister, because, as he said, "I did not consider that my business."
Upon his arrival at the jail the defendant renewed his request both to the arresting officer and the jailer that he be taken to a physician for an examination to substantiate his claim that he was not intoxicated and had not drunk any intoxicating liquor. Again these requests were ignored. The defendant then insisted that he be taken before a proper official in order that he might be admitted to bail, stating that he had a sufficient amount of cash in his possession as security for the necessary bond. This request, too, was denied, as Keister, the arresting officer said, "because I considered him too drunk and told the jailer not to bail him until nine o'clock p. m." The jailer, too, concurred in this view, saying that the defendant "talked, acted and appeared to be drunk, and I considered him too drunk to be bailed."
Shortly after the arresting officer arrived at the jail with his two prisoners, Carlson Jones, an acquaintance of Winston, came up and joined in the request that the two men be granted the opportunity of applying for bail. This request was likewise denied, with the statement that the two men would be afforded the opportunity of applying for bail at nine o'clock p. m., in accordance with the directions of the arresting officer.
About nine o'clock p. m., Winston and his companion, Granger, were taken before the assistant trial justice at Charlotte Court House, where a warrant was issued for Winston, charging him with the offense of which he has been convicted. At the same time and by the same official he was admitted to bail.
According to the testimony of the deputy sheriff or jailer, the defendant, Winston, "appeared to be still drunk" at the time he was admitted to bail. The official who issued the warrant and admitted the defendant to bail did not testify on the subject.
Granger admitted that the whiskey found in the car was his property. He testified that he alone had consumed the liquor which had been taken from the partly-filled bottle, and corroborated the testimony of Winston that the latter had drunk no intoxicating liquor of any kind throughout the whole day, during which time they had been together. Granger further admitted that he was intoxicated at the time of the arrest and that he had been fined therefor by the trial justice.
Three residents in the neighborhood came upon the scene shortly after Winston and his companion had been placed under arrest. One of these testified that in his opinion Winston was "under the influence of liquor, " while two of these disinterested witnesses testified directly to the contrary.
Dr. Hoover, a qualified physician, called as a witness for the defense, testified that there are two scientific tests known to the medical profession by which it can be determined whether a person is under the influence of intoxicating liquor. One is by an analysis of the contents of the stomach, procured by the use of a stomach pump, and the other, "the most accepted method, " is by an analysis of the blood. To be accurate both of these tests, he said, "should be performed immediately." Neither could be relied upon "more than three hours after" the time of the supposed consumption of the intoxicant.
Article I, § 8, of the Virginia Constitution provides:
The defendant contends that the conduct of the arresting officer and that of the deputy sheriff or jailer deprived him of this constitutional guaranty in two respects:
First, it is said that the refusal of the officers to comply with the defendant's request to take him to a physician for an examination shortly after his arrest had the effect of depriving him of evidence which would have substantiated his claim that he was not intoxicated at the time he was driving the car.
We do not agree with this contention. It is true that the constitutional guaranty of the right of an accused "to call for evidence in his favor" "includes the right to prepare for trial which, in turn, includes the right to interview material witnesses and to ascertain the truth." Bobo v. Commonwealth, 187 Va. 774, 779, 48 S.E.2d 213, 215. But in the case before us, in respect to this particular claim, there was no denial of the right of the accused to produce evidence in his favor.
There is no evidence that the arresting officer or the jailer refused to allow the defendant, either personally or through his friend who came to the jail shortly after the defendant had been delivered there, to get in touch with a physician and arrange for a physical examination of the defendant. Nor is there any contention that theservices of a physician had been procured and that he was denied the opportunity of examining the defendant in jail. Had either of these situations obtained, a different question would have been presented to us.
In effect, the request of the accused here was that the arresting officer or jailer locate a physician who was willing to undertake the examination and take the defendant to him, or else have the physician come to the jail to make the examination.
The duties of an arresting officer and those of the custodian of one accused of a crime are fixed by law. We are aware of no statute or principle of law which places upon these officers in this State the duty to arrange for an examination of a person who has been arrested, or is being held in custody on a charge of drunkenness, and to produce him before such a physician for this purpose.
In this situation the duty of engaging the services of a physician to make such an examination, and of thus securing his testimony to establish the defendant's sobriety, was on the defendant and not on the officers.
It is next claimed that the defendant was deprived of his fundamental rights by the failure of the arresting officer to bring him promptly...
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