Gardner v. Com.
| Decision Date | 03 May 1954 |
| Citation | 195 Va. 945,81 S.E.2d 614 |
| Court | Virginia Supreme Court |
| Parties | JAMES E. GARDNER v. COMMONWEALTH OF VIRGINIA |
George E. Allen; Allen, Allen, Allen & Allen; Frank A. S. Wright; and Gambill, Minor & Wright, for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General and Frederick T. Gray, Assistant Attorney General, for the Commonwealth.
James E. Gardner, hereinafter designated defendant, seeks by this writ of error a reversal of a judgment convicting him of driving an automobile while under the influence of intoxicants in violation of Code section 18-75.
The Attorney General moved to dismiss the writ of error because defendant's brief does not contain a statement of facts as required by rule 5:12:1(c), Rules of the Supreme Court of Appeals of Virginia. We have repeatedly said that compliance with this rule is of immeasuable help to the Court in deciding the questions presented, and have warned that a failure to comply with it might result in the denial or a dismissal of the appeal or writ of error. Norfolk Southern Ry. Co. v. Lassiter, 193 Va. 360, 68 S.E. (2d) 641; Southwest Virginia Hospitals, Inc. v. James C. Lipps, 193 Va. 191, 68 S.E. (2d) 82; James v. Commonwealth, 192 Va. 713, 66 S.E. (2d) 513; Matthews v. W. T. Freeman Co., 191 Va. 385, 60 S.E. (2d) 909; Hall v. Hall, 181 Va. 67, 23 S.E. (2d) 810. We are fully conscious of the fact that such a dismissal is drastic to the litigants affected, but we must insist on orderly procedure in order to dispose expeditiously of the many matters presented to us. However, two of the three questions raised in this case are questions of law and are not necessarily controlled by the facts. The printed record is short and contains only thirty-six printed pages of testimony. the evidence is in sharp conflict and on the first trial there was a hung jury. Under these circumstances we overrule the motion, but repeat with emphasis the warning heretofore given that, unless there is substantial compliance with the rule, the appeal or writ of error may be refused or dismissed without considering the questions presented.
Defendant's first contention is that the trial court over his objection impaneled only seven jurors to try the case, thereby limiting him to only one peremptory challenge. His contention is that under Code section 8-200, as amended in 1952, a jury of eleven should have been impaneled, thus giving him and the Commonwealth the right to three peremptory challenges of jurors.
Prior to the 1952 amendment section 8-200 provided that: 'In every case the plaintiff and defendant may each challenge one juror peremptorily when the jury consists either of five or of seven. ' The amendment struck out the word 'one' before juror and in lieu thereof inserted the word 'three' jurors.
Defendant argues that the section before and after the amendment applies to juries in criminal cases as well as juries in civil cases.
The code commission of 1950 divided section 6000 of the 1919 code into several sections and made the last sentence of that section, without change, section 8-200. Section 6000 of the 1919 code was a part of chapter 249 and applied only to juries in civil cases. Section 8-200 is a part of Title 8, chapter 11, of the 1950 code, and likewise applies to juries in civil cases. Chapter 195 of the 1919 code, of which section 4927 is a part, applies to juries in criminal cases, and Title 19, chapter 8, Article 3, of the 1950 code, of which sections 19-181 and 19-183 are parts, applies to juries in criminal cases. Code section 19-181 is as follows:
* * *'
The 1950 code commission in codifying the above section followed the example or pattern of the 1919 code in codifying section 4927 by making several sections pertaining to juries in civil cases applicable to juries in criminal cases. These references define who are qualified jurors, who are disqualified, and who are exempt from jury service; and provide for the punishment of those who, after being duly summoned, fail to attend, their compensation and by whom paid, etc. Section 19-181 specifically provides that: 'Seven jurors shall constitute a panel in the trial of misdemeanors, but the jury therefor should be composed of five. ' This mandatory provision is stated in different language in the second paragraph of section 19-183, which reads as follows: 'In every case of misdemeanor, whether on an appeal from a trial justice or an original trial, the Commonwealth and the prisoner shall each be allowed one peremptory challenge.'
Litigants in civil cases are usually referred to as plaintiff and defendant, and in criminal cases as Commonwealth and defendant, or Commonwealth and accused. Neither of the latter designations is found in the 1952 amendment. It is inconceivable that the General Assembly, by amending one section of the statute applying to civil cases, should by reference intend to amend two sections applicable specifically to juries in criminal cases. This phase of the question was thoroughly covered in an opinion rendered by the Attorney General on July 7, 1952, soon after the amendment became effective, and with which we are fully in accord, wherein he said:
Defendant's second contention is that the court over his objection erroneously permitted the officer who made the arrest to testify that defendant refused to submit to a blood test to determine the amount of alcohol in his system.
The testimony to which defendant objected was admitted while the Commonwealth was examining its witness, E.A. Austin, a member of the State police force. This officer testified that at approximately 11:30 p.m., on August 9, 1952, he saw defendant driving his automobile from side to side of the two north-bound lanes on U.S. Route 1, approximately two miles north of Colonial Heights. He stopped the defendant and arrested him for driving while intoxicated. Defendant denied that he was intoxicated and asked the officer to reduce the charge to reckless driving, which the officer refused to do. During the course of the conversation at the scene of the arrest and en route to a justice of the peace to obtain a warrant, the officer 'asked defendant if he would like to submit to a blood test. ' The defendant refused. After the officer obtained the warrant he took defendant to Chesterfield court house for the purpose of putting him in jail, and while defendant was making numerous telephone calls in an effort to get a bondsman the officer repeated his suggeston, and again defendant refused.
Defendant contends that the admission of this evidence was a violation of that part of section 8 of the Constitution which provides that an accused shall 'not be compelled in any criminal proceeding to give evidence against himself.'
No pertinent authority is cited in defendant's brief to support this contention. He quotes several broad, general statements found in various textbooks, none of which is pertinent to the specific question here raised. The testimony to which defendant objected was not a statement made by him as a witness in any judicial or quasi judicial proceedings. He was not under oath.
Evidence tending to show the attending circumstances of the arrest of an accused, his acts and conduct, his physical and mental condition, and his declarations is pertinent, if such evidence tends to show his guilt. 22 C.J.S., Criminal Law, sec. 628, p. 962.
The defendant was not forced to testify, nor was he compelled to take the stand in his own behalf. The objectionable evidence was given by a witness for the Commonwealth in describing the incidents of the arrest, the condition of the defendant, and his declarations voluntarily made.
The constitutional inhibition against self incrimination does not apply to evidence of extra-judicial admissions or confessions. The privilege against self incrimination protects a person from any disclosure obtained by legal process against him as a witness. The admissibility of an admission or a confession depends upon the application of a rule of evidence. That is, whether under the circumstances the admission or...
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