Evans v. City of Richmond
| Decision Date | 01 December 1969 |
| Citation | 171 S.E.2d 247,210 Va. 403 |
| Court | Virginia Supreme Court |
| Parties | George Bolding EVANS, Jr., Appellant, v. CITY OF RICHMOND. George Bolding EVANS, Jr., Appellant, v. COMMONWEALTH of Virginia. |
Milton P. Miller, Richmond (Miller & Rosman, Richmond, on brief), for plaintiff in error.
James B. Wilkinson, Commonwealth's Atty. for the City of Richmond, for defendant in error.
Walter H. Ryland, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN and HARMAN, JJ.
At approximately 8:30 p.m. on September 18, 1967, Thurman T. Jones was proceeding south on Richmond's 14th Street Bridge and had stopped in the left lane of the two southbound lanes of the four-lane road, preparing to make a left-hand turn off the bridge when his car was struck in the rear by another southbound vehicle. The car which struck him then went around the right side of the Jones vehicle and continued south across the bridge.
The incident was witnessed by at least two other motorists, one of whom actually followed the car which struck the Jones vehicle and secured its license number. Records of the Division of Motor Vehicles indicated that the car involved was registered to Irmagard Evans, wife of the appellant.
Because of his relationship with the owner of the car, George Bolding Evans, Jr., was questioned several times by the police and eventually arrested on September 27, 1967, and charged with reckless driving and 'hit and run'.
The case was tried before the Traffic Court and appellant was convicted and fined $100 and costs under the reckless driving warrant. He was also convicted and fined $250 and given a thirty-day jail sentence under the 'hit and run' warrant.
After his conviction in the Traffic Court, appellant exercised his statutory right and appealed to the Hustings Court of the City of Richmond where both warrants were consolidated for trial before a jury. At this trial, the identity of the appellant as the driver of the other vehicle was the paramount issue before the jury.
The court instructed the jury on the principles of law involved in the case and in addition to the instructions which were granted, the appellant offered his own identity instruction which the court
refused to give. The appellant's Instruction B which was refused reads as follows:
INSTRUCTION B
The burden is upon the Commonwealth to prove by the evidence beyond a reasonable doubt that the defendant was in fact the driver of the automobile that struck Mr. Jones' automobile. It is not sufficient that the jury may Believe that he was probably the driver, or that it is more probable that he was than that he was not. Suspicion on probability in this case, however strong, will not authorize a conviction, but the evidence must prove beyond a reasonable doubt that the defendant was the driver of the automobile in question at the time and place of the alleged offense. The jury shall not speculate or go outside of the evidence to consider what they think might have taken place, but you are to confine your consideration to the evidence introduced by the Commonwealth and the defendant and unless you believe, upon a consideration of all the evidence before you, that the identity of the defendant as the driver has been proved beyond a reasonable doubt, then you shall find the defendant not guilty.
The jury returned a verdict of guilty on both charges and fixed punishment at $100 fine and four months in jail on each warrant for a total fine of $200 and total jail confinement of eight months.
Appellant concedes that the evidence was sufficient to sustain the conviction but assigns as error:
(1) The Court's refusal to grant Instruction B; and
(2) The imposition of increased punishment as a result of his second trial.
The court will first consider appellant's contention that it was error on the part of the trial court to refuse to grant Instruction B. This instruction simply states that the burden of proving every material and necessary element of the offense charged was upon the Commonwealth and that probability or suspicion of guilt is insufficient because it is not guilt beyond a reasonable doubt. The language of the instruction, however, is so phrased as to emphasize that the identity of the accused as the driver of the car must be proved beyond a reasonable doubt.
Appellant argues that if the evidence warrants it and if the defendant tenders or requests an identity instruction then it is reversible error for the trial court to refuse to so instruct the jury.
In the case of Waller and Boggs v. Commonwealth, 84 Va. 492, 5 S.E. 364 (1888), this court held that it was reversible error not to grant an identity instruction as requested where the instruction which was granted in lieu thereof was calculated to create an impression upon the mind of the jury that the identity of the accused could be established by a lesser degbree of proof that the law requires. The court went on to say, however, that the granting of an instruction which was plainly the exact equivalent of the one offered and refused would not amount to reversible error.
We think, therefore, that it is necessary to examine the instructions granted by the trial court to determine whether or not they are plainly the equivalent of Instruction B.
Instruction B, to an extent, is almost identical with Instruction 3 which...
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