Coffey v. Commonwealth

• Court: Virginia Supreme Court
• Writing for the Court: HUDGINS
• Citation: Coffey v. Commonwealth, 188 Va. 629, 51 S. E. 2d 215 (1949)
• Decision Date: 10 January 1949
• Parties: COFFEY. v. COMMONWEALTH.

51 S.E.2d. 215

188 Va. 629

COFFEY.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 10, 1949.

Rehearing Denied March 8, 1949.

MILLER and STAPLES, JJ., dissenting.

Error to Circuit Court, Rockbridge County; Floridus S. Crosby, Judge.

Edwell D. Coffey was convicted of involuntary manslaughter and he brings error.

Affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

Wm. Kinckle Allen, of Amherst, for plaintiff.in error.

J. Lindsay Almond, Jr., Atty. Gen., and Henry T. Wickham, Sp. Asst. to Atty. Gen., for the Commonwealth.

HUDGINS, Chief Justice.

About 8 p. m., on August 9, 1947, Mrs. Frank Floyd, with her sixteen-year old daughter, Libby, were walking from their home to Pentecostal Church, near Mountain View schoolhouse, in Rockbridge county. Just before they reached the church, and while they were walking on the left-hand side of the hard-surfaced road, a car going in the opposite direction, swerved to its right, struck and killed Mrs. Floyd. The driver of the car failed to stop and continued up the road. Edwell D. Coffey was accused of driving the car, indicted for involuntary manslaughter, convicted and sentenced to three years in the penitentiary.

The accused concedes that the evidence for the Commonwealth is sufficient to sustain the verdict; hence only that part of the evidence pertinent to the assignments of error will be discussed. He also concedes that the car involved in the accident was owned by him, and that he and Edward Southers were its only occupants at the time of the accident. The only controverted issue was whether the accused was driving the car at the time it struck Mrs. Floyd.

W. B. Chittum, sheriff of Rockbridge county, was called as a witness for the Commonwealth and stated that he arrived at the scene within forty-five minutes after Mrs. Floyd was struck, and that immediately thereafter he was informed that the car involved in the accident was parked about seven-tenths of a mile north of the scene. He went immediately to the parked car and found the accused sitting on the right hand side of the front seat and Edward Southers sitting under the steering wheel of a parked truck facing the car involved in the accident. He arrested both and at the time they were "very much intoxicated, " the accused was intoxicated "but handled himself better than Southers did." The accused "staggered some but when they got to jail he walked in unassisted and what little talking he did was very good. He was not like a person so drunk he did not know what he was doing." The accused and Southers told this witness that they did not remember who was driving the car at the time it struck Mrs. Floyd.

On cross-examination the witness was asked about a statement that Southers had made to him and the attorney for the Commonwealth, in the absence of the accused, on Sunday, the day after the accident, to which the witness replied:

"This is not a regular statement. I would ask him a question and write down what he would tell me. I have here: 'We were only ones in the car.' He said, 'I drove to Aasheims and drove away from Aasheim's--got out of car to take a leak near bridge. Both of us got out of car then. Taken drinks behind the car. Went behind car to urinate. I started drinking with Allen. Don't remember getting back in car. Don't remember who drove the car away from bridge. Remember getting out on right side of car when it stopped.' That is all."

The bridge to which Southers referred in this statement was the South River bridge. This witness further stated that when he found Southers in the truck sitting under the steering wheel he was wet, but he did not tell him on Sunday afternoon how he got wet, but he did later. Southers told him that after the accident he (Southers)-got out of the car and went up over the bank into the woods. The attorney for the accused asked "Did Southers tell you why he went up into the woods, " to which the witness replied: "He (Southers) said when they stopped the car that he rolled out on the right-hand side and Mr. Coffey came around the front of the car, " and said "Let's get out of here." and said "If anyone asks who was driving the car--" The objection of the accused to a statement alleged to have been made by him was overruled, and the witness continued:

"Well, that is all. In other words, he did go up in the woods, made the statement he went up in the woods a piece; that he thought Coffey was following him, seemed like he heard a scrambling at the bank-- this particular bank is right along the ditch and I would say around four feet and a half high and a barbed wire fence laying down, and right at the place that Southers went up the bank he stated he thought Coffey was following him, went up in the woods a piece further and started calling him, kept on wandering and went on up to the top of the hill and at that time it started raining; that he came back over the hills in the woods and saw these lights down on the road so he came back and crawled up in this truck that had the lights on it."

On re-direct examination the witness stated that Southers had made two different statements to him, one on Sunday afternoon and one on Tuesday morning. Thereupon, the attorney for the Commonwealth said to the witness:

"Tell the jury what conversation you had with Southers at that time." (Tuesday morning.) The accused objected to the question and answer, on the ground that he was not present when the statement was made. This objection was overruled and the witness was permitted to tell the jury in detail what Southers had said to him on Tuesday, three days after the accident. The substance of this conversation was (1) that Southers had sent the sheriff word he desired "to tell the truth about it;" (2) that he had met Sam Allen and the accused in the afternoon of August 9; that they had parked the accused's car near Whiteside farm, while the three of them had gone to Lexington to buy whiskey; that they ran out of gas, had a flat tire, but finally returned to the accused's parked car and that he drove it from there to Coffey's home, there he got in Sam Allen's car and left Coffey. A little later Coffey drove his car to Southers' shop and then he got in the car with Coffey, drove to Sam Allen's house where all three had a drink, and from there he had driven to Aasheim's home, where he, Coffey, and Aasheim drank from the same bottle; from Aasheim's he drove Coffey's car to Marl Creek bridge, which is a short distance from South River bridge, where he and Coffey got out of the car and took another drink. At Marl Creek bridge the accused became irritated because Southers would not promise to repair his car on Sunday and said "I will drive my own damn car;" the accused then got in the car, with Southers on the front seat, and drove past Mountain View schoolhouse, and immediately after the car had struck Mrs. Floyd, Southers remarked "You have killed someone, " to which the accused replied "I have hit someone." When the car stopped Southers got out on the right-hand side and went into the woods.

This detailed statement of what Southers had said to the sheriff in the absence of the accused was permitted to remain with

the jury until during the examination of Southers himself as a witness for the Commonwealth when the trial court requested a conference with the attorneys in chambers. In this conference the judge stated that he had changed his opinion and had reached the conclusion that he had committed error in permitting the sheriff to tell the jury what Southers had told him on Tuesday in the absence of the accused. Thereupon the attorney for the Commonwealth said:

"If the court feels it has committed error it would be well to declare a mistrial at this stage of the proceedings rather than going any further."

The attorney for the accused immediately moved for a mistrial which was overruled, the judge stating "I don't think it is an error to be reversed on if nothing else happens in the case."

On re-entering the court room, the trial judge, in the presence of the jury, said:

"Gentlemen of the jury, just a short time ago the sheriff was on the stand. He was examined by" the Commonwealth Attorney's assistant and then he was cross-examined and the court permitted the Commonwealth Attorney to ask him about the conversation he had with the witness, Southers, on Tuesday. Neither the conversation on Sunday nor the conversation on Tuesday was in the presence of the accused. I ruled that he could ask the question. I find I was in error in permitting that testimony to go to you and you will remember what it was. He said that the accused was driving and he was not driving. That was an error on my part and I am going to strike that part of the testimony from the record and ask you to disregard it."

The accused contends, (1) that the admission of the sheriff's testimony as to what Southers told him on Tuesday, August 12, was so highly prejudicial that it could not be cured by the court's instruction to disregard it; (2) that the court's instruction to disregard the testimony was not clear and comprehensive, and, therefore, the error was not cured.

It is right and duty of a trial court to correct an error arising from the erroneous admission of illegal evidence when theerror in its admission is discovered before the trial is concluded. The striking or the withdrawal of such evidence from consideration of the jury must be made in positive, comprehensive and explicit terms. Taylor v. Commonwealth, 122 Va. 886, 94 S.E. 795; Washington-Virginia Ry. Co. v. Deahl, 126 Va. 141, 100 S.E. 840; Norfolk & Western Ry. Co. v. James, 147 Va. 178, 136 S.E. 660; 5 C.J.S., Appeal and Error, § 1737a; page 1029.

In Washington & O. D. Ry. v. Ward's Adm'r, 119 Va. 334, 339, 89 S.E. 140, 142, Judge Kelly, speaking for the court, said:

"A judgment ought not to be reversed for the admission of evidence or for a statement of counsel which the court afterwards directs the jury to...