Coward v. Commonwealth

• Decision Date: 14 March 1935
• Citation: 178 S.E. 797
• Court: Virginia Supreme Court
• Parties: COWARD. v. COMMONWEALTH.

178 S.E. 797

COWARD.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

March 14, 1935.

HUDGINS, J., dissenting.

Error to Corporation Court of Norfolk, Part 2.

Walter C. Coward was convicted of driving an automobile while under the influence of intoxicants, and he brings error.

Reversed.

Argued before CAMPBELL, C. J., and HOLT, EPES, HUDGINS, GREGORY, BROWNING, and CHINN, JJ.

W. L. Devany, Jr., of Norfolk, for plaintiff in error.

The Attorney General, for the Commonwealth.

HOLT, Justice.

Walter C. Coward was tried upon the charge of driving an automobile while under the influence of intoxicants. The jury returned a verdict finding him guilty and fixing his punishment at three months in jail and a fine of $100. The court entered judgment in accordance with the verdict.

Upon his direct examination the accused testified that he was not under the influence of intoxicants, but had drunk four bottles of 3.2 per cent, beer at a restaurant; that he went directly from the restaurant to Wright's Parking Station to try out an automobile; that he took the automobile he was driving without permission and was driving it around the block to test it when he was arrested on the charge upon which he was tried; and that he was going to buy a secondhand car and had on several occasions tried out automobiles looking to the purpose of purchasing one.

Upon cross-examination he was asked whether he was a man of means and prepared financially to purchase an automobile. The accused objected to answering this question, but the court required him to answer. His answer was that he was not a man of means but had an interest in a wholesale tobacco supply store.

After the jury had retired to its room, it returned and inquired of the court "what time the defendant would get off while he was confined in jail." To this inquiry the court replied: "The law is that the jailershall also keep a record of each convict, and for every month that any convict appears by such record to have faithfully observed the rules and requirements of the jail while confined therein, and not to have been subjected to discipline for violation of same, there shall, with the consent of the judge, be deducted from the term of confinement ot such convict ten days."

Thereupon the accused moved the court to declare a mistrial because it had made this reply to the inquiry of the jury.

The accused makes two assignments of error: (1) The court erred In requiring the accused to answer the commonwealth attorney's question whether he was a man of means and able to buy an automobile. (2) The court erred in instructing the jury as it did in its reply to the jury's inquiry.

He said that he had taken the automobile, which he was driving when arrested, without permission of the owner but with the intention of trying it out as a possible purchaser.

There was no intention to prejudice the jury by showing that he was a man of wealth. If he was so circumstanced that he could not buy a car at all, that fact had a direct bearing upon the truthfulness of his statement. It manifestly bore upon his credibility, and so was plainly competent.

The second assignment of error presents a more serious question. When the jury inquired of the court, "What time the defendant would get off while he was confined in jail, " it could have had but one purpose in mind. It wanted to know the actual time of his confinement for any sentence which might be imposed. It had, by statute, wide discretion. Driving an automobile while under the influence of intoxicants is a misdemeanor punishable "by a fine of not less than one hundred dollars nor more than one thousand dollars, or confinement in jail not less than thirty days nor more than twelve months, or both for the first offense." Code, § 4675(25), Acts 1932, p. 109, c. 103.

The consideration which might be extended to a prisoner for good conduct was a matter which did not fall within its province.

Under an act of the General Assembly, approved March 11, 1932, Acts 1932, p. 152, c. 136, a prisoner whose conduct is good is entitled to have deducted from each month during which the sentence runs, 15 days; that is to say, one sentenced to 20 years' confinement would serve only ten years. A jury which has been instructed as to this statute might be of opinion that 10 years' confinement was just punishment for a proven crime. In order to impose it, a 20-year sentence would be necessary. Plainly, such a verdict would be indefensible.

In State v. Satcher, 124 La. 1015, 50 So. 835, it appears that a negro was sentenced, on a charge of murder, to life imprisonment. The judge told the jury that such a sentence, by good behavior, could be reduced to 15 years. It was held that the prisoner was not prejudiced. If the jury thought that the maximum punishment provided for by law should be inflicted, he was not; but that is a matter of guesswork.

In State v. Martin, 94 N. J. Law, 139, 109 A. 350, 352, the court told the jury: "That the court of pardons was a court higher than the oyer and terminer, and might exercise the pardoning power of sovereignty as a court of pure mercy and grace, and, if a defendant in a case of this character is sent to state's prison for life, that court might change the result of the verdict. We think this remark was unfortunate, but we cannot say that the judge committed legal error, or went beyond his right of comment. Nor can we say that harm was done to the prisoner. The remarks of the judge were quite unnecessary, since we suppose that every juryman must know of the existence of the court of pardons, and that it might change the result of their verdict by exercising mercy or grace." On appeal it was held that such a charge should not have been given, but it did not constitute reversible error.

There the court of pardons might act if it saw fit. In the instant ease, by an established rule, sentences are definitely diminished.

In People v. Sukdol, 322 Ill. 540, 153 N. E. 727, 729, it appears that a trial judge told the jury: "You are instructed that the penalty in this case, if the defendant is found guilty by you, is an indeterminate sentence in the penitentiary of from 1 to 20 years. You are further instructed that such a penalty means that the defendant, after serving 1 year of such sentence, has the right to apply to the parole board of the state of Illinois for release on parole, and such board has the right to release him on parole at that time, or at any subsequent time within the period of said 20 years." On appeal, the court said...