Blakey v. Commonwealth

• Decision Date: 01 May 1944
• Court: Virginia Supreme Court
• Parties: BLAKEY. v. COMMONWEALTH.

29 S.E.2d 863

BLAKEY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

May 1, 1944.

Error to Circuit Court, Alleghany County; Earl L. Abbott, Judge.

Maxie Lee Blakey was convicted of operating an automobile while intoxicated, and he brings error.

Affirmed.

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

R. B. Stephenson, of Covington, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Edwin B. Jones, Asst. Atty. Gen., for the Commonwealth.

HUDGINS, Justice.

Maxie Lee Blakey, by this writ of error, seeks to reverse a judgment entered on a verdict sentencing him to thirty days' confinement in jail for operating an automobile while intoxicated.

The six assignments of error stated in the petition present three questions: (1) Whether the evidence is sufficient to sustain the verdict; (2) whether the court committed reversible error in permitting certain evidence to be introduced; and (3) whether the jurors were properly drawn, summoned and selected.

About 11:15 p.m. on May 29, 1943, J. B. Hinkle and his twin sisters were riding in a taxicab east on route 60 from Covington to the home of Frank McBee, which is on the north side of the highway opposite the Good Inn Tearoom. Before the taxicab reached its destination, its occupants saw the lights of a car following them. As the taxicab turned around at the entrance to the tearoom, the car in the rear stopped on the south side of the highway 124 feet from the entrance. As this car stopped, its horn began to blow and its lights went out Hinkle, after discharging his passengers, passed the parked car en route to Covington. He saw that it contained only one occupant, who was sitting under the steering wheel. The horn was still blowing. The two girls went across the highway to McBee's residence. One remained on the outside of the house watching the parked car. The other went inside and called Mc- Bee. The three then returned to within 75 feet of the parked car. The only occupant was slumped forward over the steering wheel with the horn still blowing. The horn continued to blow until two officers arrived approximately twenty minutes later. The officers opened the car doors, found defendant in a drunken stupor sitting in the driver's seat slumped over the steering wheel with his head resting on the horn button. When the officers raised defendant's head, the horn immediately stopped blowing. Defendant was shoved over to the right side on the front seat. One of the officers got into defendant's car with him and drove to the jail in Covington. Defendant was so drunk that he was unable to walk up the steps to the jail without assistance. The odor of whiskey was strong on his breath.

The evidence for the Commonwealth is not contradicted. There are some discrepancies in the testimony of the witnesses as to just when the lights on defendant's car were turned off and as to the interval between the time defendant stopped and the arrival of the officers. No one was seen to leave the car. Defendant could not have parked his car, continued to blow his horn in the manner in which he was blowing it, and, in the interval, drunk enough intoxicating liquor to produce the condition he was in when the officers found him. The jury returned the only verdict justified by the evidence.

Officer S. O. Walton, over defendant's objection, was permitted to state that he found in the car an official card showing that the car was registered in the defendant's name with the Virginia Motor Vehicle Commissioner, and that the license numbers on the car were the same as those on the card.

Defendant based his objection on the ground that the testimony was hearsay. In one sense, the evidence may be hearsay, but the officer was describing an object he found in the car or on the defendant's person at the time he was arrested. The testimony was admissible. However, it was immaterial, as the ownership of the car is not one of the essential elements of the statutory crime with which defendant was charged.

Cecil Carter, deputy sheriff, testified, in part, as follows:

"Q. Had you known Blakey for sometime? A. Yes, sir.

"Q. Had you seen him when he was sober and also when he was intoxicated? A. Yes, sir.

"Q. On this occasion when he was brought in by Mr. Walton, I wish you would state whether he was drunk or sober? A. He was drunk.

"Q. No question about that? Did you take him to his cell? A. Yes, sir.

"Q. What was his condition when you took him to his cell? A. Well, I took--I had to hold him by the arm. I had to half way hold him when I took him up to the top floor to keep him from falling and hurting himself."

No objection was made to any of this testimony at the time. Later, in chambers, a motion was made to declare a mistrial on the ground that the question and answer italicized were highly prejudicial. This motion was overruled. Then defendant moved to strike the question and answer. The court, in overruling the motion, said: "I think it is best; I am not saying anything about it, for it will then leave an impression upon the minds of the jury. I am going to overrule the motion."

The Attorney General concedes that the question and answer "were inopportune and unnecessary." If so, the court should have sustained defendant's motion to strike, even if such ruling would have left "an impression upon the minds of the jury." It was for defendant, and not the court, to decide whether or not he desired to so emphasize inadmissible evidence. But, even if we regard the evidence as inadmissible, the whole record shows that the Commonwealth did not attempt to prove the reputation or habits of defendant. Several other witnesses testified, and it is not denied, that the defendant was highly intoxicated when the officers found him and when he arrived at the jail in the custody of Officer Walton. At most, the admission of this evidence was harmless error.

When the case was called for trial on July 22, 1943, defendant moved to discharge the jurors then present; and to require the clerk to place the names of all jurors, who had been regularly drawn and summoned to try felony and civil cases, in a box, and to draw therefrom a panel of seven to try this defendant. This motion was overruled and the defendant excepted.

The facts on which the motion is based are that, before the convening of the Julyterm of the Circuit Court of Alleghany county on July 15, a venire of 20 persons for the trial of felonies was regularly drawn and summoned pursuant to the provisions of Code of 1919, sec. 4895, as amended, and a venire of 9 jurors for the trial of civil cases was regularly drawn and summoned pursuant to the provisions of Code of 1919, sec. 5992, as amended. Two of these 29 prospective jurors were excused because of physical infirmities.

When the docket was called on July 15, it was ascertained that no jury would be required for the trial of any felonies and that no jury for the trial of misdemeanors would be needed until July 21. Confronted with this situation, the trial judge determined that only 17 jurors were needed to try all civil and misdemeanor cases set for trial at that term. It appears that the 27 men summoned were not personally known to the judge. However, he was informed that several of them were employees of the C. & O. Railway and others were farmers living some distance from the court house. He thereupon discharged for the term all of the employees of the C. & O. Railway and all farmers who lived in the most remote sections of the county, and ordered the remaining 17 prospective jurors to return on July 21. On this date from the list of 17 a panel of 7 was selected to try another misdemeanor case. These 7 were excused until a later day in the term and the other 10 were excused for the day but ordered to return on July 22, the day the present case was set for trial. Several of the 10 had been summoned on the venire facias for the trial of felonies and the others had been summoned for the trial of civil cases.

Defendant does not attack the qualification of any one of the 10 jurors who...