Bell v. Commonwealth

• Decision Date: 10 March 1938
• Citation: 195 S.E. 675
• Court: Virginia Supreme Court
• Parties: BELL. v. COMMONWEALTH.

195 S.E. 675

BELL.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 10, 1938.

[COPYRIGHT MATERIAL OMITTED]

Error to Circuit Court, Arlington County; Walter T. McCarthy, Judge.

Gordon A. Bell was convicted for involuntary manslaughter, and he brings error.

Affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Amos C. Crounse, of Arlington, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Joseph L. Kelly, Jr., of Richmond, for the Commonwealth.

SPRATLEY, Justice.

This case presents the question of the degree of negligence required to convict one of involuntary manslaughter where the homicide is alleged to have been caused by the negligent operation of an automobile.

Gordon A. Bell, the plaintiff in error, who will be hereinafter referred to as the defendant, was indicted for manslaughter. "The indictment was in the short or statutory form, Code 1936, § 4865, and charged the defendant "did on February 1, 1937, in said county of Arlington, Virginia, feloniously kill and slay one, Jessie Cooley, against the peace and dignity of the Commonwealth."

Upon his arraignment, he entered a plea of not guilty, and moved the court to require the Commonwealth to furnish him with a bill of particulars, which motion the court granted.

The bill of particulars sets out the following specifications: "That at the time and place laid in the indictment now pend ing against the said Gordon A. Bell, he did operate a motor vehicle recklessly and unlawfully, in that he then and there operated the said motor vehicle at a rate of speed in excess of a lawful rate of speed; that he drove the said motor vehicle upon the left of the center of the street or highway; that he operated said motor vehicle, without any headlights, or with headlights which failed to comply with the requirements of the law of Virginia; that he failed to have the said motor vehicle under proper control or to keep a proper lookout for the safety of other persons using the said highway; that he drove the said motor vehicle at a speed that was greater than reasonable and proper, having due regard to the traffic, surface and width of the highway, and other conditions existing at the said time and place, and at such a speed as to endanger the life of persons on the said highway; and that while so unlawfully operating the said motor vehicle, it struck and injured the person of one Jessie Cooley, from which injuries she died."

Upon motion of the defendant for further and more definite specifications, the Commonwealth amended its bill of particulars by further setting forth the place where the crime was alleged to have been committed, and the direction in which the defendant was driving. The trial court refused to grant a motion for a more definite bill. To this refusal, the defendant excepted, and this exception constitutes one of his assignments of error.

The case then proceeded to trial, and a jury, upon the evidence and instructions given by the court, found the defendant guilty of involuntary manslaughter, and fixed his punishment at two and one-half years in the penitentiary.

The defendant moved the trial court to set aside this verdict, and to grant a new trial on the grounds that it was contrary to the law and the evidence, contrary to the instructions of the court, and for error in the granting, in the refusing, and in the amending of certain instructions. This motion the court denied, and sentence was thereupon pronounced against the defendant, in accordance with the verdict of the jury.

To sustain a charge of involuntary manslaughter, the Commonwealth presented the following evidence:

On the night of February 1, 1937, there was a benefit card party at the community house in Clarendon, a thickly settled com-munity, attended by quite a number of people. The community house is located on the east side of North Irving street, near the intersection of that street with North Wilson and North Washington boulevards. North Irving street is 25 feet wide, and runs north and south. North Wilson boulevard runs northeast and southwest, and North Washington boulevard runs northwest and southeast. The lot on which the community house is located is in a long city block, extending 525 feet southerly from the above-described intersection to North Tenth street, another intersecting street. On the east side of North Irving street a sidewalk extends from the north end of the block about 118 feet to a point in front of the community house. Beyond this, going south on the same street, there is no sidewalk, but there is a ditch or gutter marking a division line between the street and the adjoining property.

On the day in question, it had been raining, and the ground to the east of the street was muddy. There were automobiles parked on both sides of the street, and extending on the east side thereof to the community house, leaving a space in the center of the street 13 feet wide for traffic. The street was unlighted between the intersections.

A few minutes before 12 o'clock on that night, the card party ended, and the participants left, some going to their parked automobiles to return home. Among those so leaving were the now deceased, Mrs. Cooley, and three companions, Mrs. Grace Dagger, Mrs. Bertha Warner, and Mrs. Lillian Johnson. These four women came out of the community house, and stepped immediately into North Irving street, turned left, and began walking southerly, two abreast, down the left-hand or east side of the street. The two couples were five or six feet apart, and the two ladies on the inside walked as close as possible to the parked cars, with Mrs. Dagger on the outside of the front couple and Mrs. Cooley on the outside of the rear couple. The two women in each pair walked closely together, their elbows within touch. While so walking, and when they had reached a distance about 200 feet from the community house, Mrs. Cooley and Mrs. Dagger, the outside women of both pairs, were struck from the rear and knocked down by the defendant's automobile, which was being operated to the left of the center of the street. Neither of the three surviving women heard any warning signal, nor saw any lights on the automobile, or any reflection therefrom on the street. They say that the road was entirely dark at the point of the collision. Mrs. Warner, who was the companion on the left of Mrs. Cooley, says she received her first impression of the approach of the car when she turned her head to speak to Mrs. Cooley, and that the car struck the latter at that moment.

Two other witnesses, Mrs. Julia Thomas and Elmer Jacobs, testified that they, too, had left the card party at its conclusion, and after getting to the end of the sidewalk on the east side of North Irving street, in front of the community house, they started directly and immediately across that street to the west side thereof. When they reached the center of the street, they noticed an automobile coming from their right without lights, and they safely hurried across. They estimated that the automobile was then running at a speed of from 18 to 20 miles per hour. They turned to watch it pass, and Mrs. Thomas called out to the driver, "Where are your lights?" She received no answer, and the car continued its course. While they were speaking to each other about the car being without lights, and within "a few seconds, " they heard a crash ahead of them. The crash appeared to be at a distance variously estimated by them at from 60 to 100 feet away. If they were at a point directly opposite the community house, the actual distance, as shown by a survey, to the place of the accident would be 205 feet. These two witnesses proceeded to the place of the crash, and there saw Mrs. Cooley and Mrs. Dagger lying on the street and the defendant's car stopped close thereby.

A police officer soon came up, and, taking charge of the situation, found that the lights on the defendant's car were out and could not be turned on. He also found its left front headlight lamp had been tilted upward, but was not broken.

All of the above witnesses agree that the defendant wore a sweater or lumber jacket, which inclosed his right arm in the body of the jacket rather than in the right sleeve, and that it was fastened so that only the right hand was exposed to the wrist below the lower part of the jacket. It further appeared that the defendant had injured his right arm in a fall some two weeks before the occurrence.

Mrs. Cooley and Mrs. Dagger were taken to a hospital, and after securing medical services, were allowed to return to their respective homes; it being thought that they had received only superficial injuries. Shortly after returning home, Mrs. Cooley became ill, sank into a coma, and died about 4:30 a. m. The autopsy disclosed a ruptured artery in the tissue surrounding the brain and a blood clot producing pressure on the brain.

At the conclusion of the Commonwealth's evidence, the court overruled the motion of the defendant to strike the evidence.

The defendant showed in the evidence that he was the owner of a model 1934 Ford coupe, which was being driven by him that night. He was accompanied by Mrs. Eva Wright, with whom he boarded, and whom he was returning home from a moving picture performance attended by her. His automobile had been regularly inspected under the laws in this state as late as November, 1936, at which time his headlights had been found to need adjustment, and had been adjusted.

He stated that about 8 o'clock that night, and again at 10 o'clock, he had operated his automobile along North Irving street, past the point of the accident in proceeding twice to Clarendon, and that at both times his headlights were burning properly. Prior to leaving North Wilson boulevard, where he had taken up Mrs. Wright for the fatal trip, and immediately prior to entering North Irving street, on this trip, both he and Mrs. Wright and two other witnesses testified that the...