Harrell v. City Of Norfolk

• Decision Date: 09 September 1942
• Citation: 21 S.E.2d. 733,180 Va. 27
• Parties: HARRELL. v. CITY OF NORFOLK.
• Court: Virginia Supreme Court

21 S.E.2d. 733

180 Va. 27

HARRELL.

v.CITY OF NORFOLK.

Supreme Court of Appeals of Virginia.

Sept. 9, 1942.

Error to Corporation Court of City of Norfolk; Richard B. Spindle, Judge.

Charles M. Harrell was convicted upon a charge of violating an ordinance of the City of Norfolk relating to the operation of an automobile while under influence of intoxicants, and he brings error.

Affirmed.

Before CAMPBELL, C. J, and HOLT, HUDGINS, GREGORY, and EGGLES-TON, JJ.

Breeden & Hoffman, of Norfolk, for plaintiff in error.

Jonathan W. Old, Jr., Donald W. Shriv-er, and M. T. Bohannon, all of Norfolk, for defendant in error.

CAMPBELL, Chief Justice.

The plaintiff in error, Charles M. Harrell, was tried and convicted upon a warrant charging a violation of an ordinance of the city of Norfolk, relating to the operation of an automobile while under influence of intoxicants. The trial court entered a final judgment on the jury's verdict adjudging that the defendant pay a fine and the costs of his prosecution.

The ordinance in force and effect at the time of the commission of the alleged offense, reads as follows:

"Section 1: It shall be unlawful for any person to drive any motor vehicle, engine or train in the City of Norfolk while under the influence of alcohol, brandy, rum, whiskey, gin, wine, beer, lager beer, ale, porter, stout, or any other liquid, beverage or article containing alcohol, or while under the influence of any other self-administered intoxicant or drug of whatsoever nature.

"Section 2: Any person who violates any provision of this ordinance shall be guilty of a misdemeanor, punishable by a fine of not less than one hundred dollars nor more than one thousand dollars or imprisonment for not less than one month nor more than six months, either or both in the discretion of the Court or jury trying the same, for a first offense. Any person convicted of a second, or other subsequent offense under this ordinanceshall be punishable by a fine of not less than one hundred dollars nor more than one thousand dollars and by imprisonment for not less than one month, nor more than one year."

The accused assigns as error the giving and refusing of certain instructions, and the refusal of the court to set aside the verdict of the jury as contrary to the evidence and without evidence to support it.

The evidence adduced by the city is as follows:

"Police Officer H. L. Helvin testified * * * that at approximately 5:40 A. M., on Sunday morning, May 4, 1941, he observed an automobile with white side-wall tires making a left-hand turn from Olney Road south into Church Street, in the City of Norfolk, Virginia. That there was only one person in the automobile, and that person was driving the same. At the time he observed this automobile he and Police Officers Pierce and Edmonds were standing midway in the 700 block of said Church Street, on the east sidewalk thereof. That the 700 block was between Olney Road on the north and Brambleton Avenue on the south. That the automobile in question nearly turned over as it rounded the corner in turning from Olney Road into Church Street. That the driver thereof was stooped over the steering wheel. That the automobile then proceeded south on Church Street and swayed to the west side of Church Street and almost struck another automobile which was parked on the west side of Church. Street, then swayed to the east side of Church Street and almost struck another automobile parked there. That he and the other two officers watched the automobile proceed southwardly down Church Street to Brambleton Avenue, a distance of one block, and it made a right-hand turn from Church Street into Brambleton Avenue going west-wardly on the latter and he and his two brother officers remarked to each other that the driver was drunk. That near the corner of said Church Street and Brambleton Avenue Officers Pierce and Edmonds met another police officer who was in an automobile. They got into this automobile and followed the automobile of defendant. That he, Helvin, then went to the Second Precinct Police Station which is about two blocks from Olney Road and Church Street, and Edmonds came up with the defendant, Charles M. Harrell, and the defendant's automobile. That the said Charles M. Harrell was the same person he had seen drive the automobile from Olney Road into Church Street, as above, and the automobile was the same automobile he had seen the said Charles M. Harrell so drive. Helvin testified that the defendant was drunk, was under the influence of an intoxicating liquor, that he smelled an odor of some alcoholic beverage on his breath, that he staggered when he walked, and had to use the side of the car for support."

This evidence was corroborated by officers Pierce and Edmonds.

The defendant testified, in substance, that he had attended a penny-ante poker party at the home of a friend at Virginia Beach on Saturday night; that he drank two highballs prior to 1 o'clock A.M., that during the course of the evening he had taken a nembutal pill which had been prescribed by his dentist to ease the pain caused by an impacted wisdom tooth; that he took three of the ladies home after the party broke up and was absolutely normal in every respect; that his tooth began hurting again and before proceeding to Norfolk, he took two more nembutal pills; that en route to Norfolk he became drowsy and did not recall exactly what occurred, although he had some recollection of smacking his face in an effort to kee awake.

Mrs. Dolly Shuford, testifying on behalf of the defendant, stated that she was a widow residing at Virginia Beach, Virginia; that she went with Mr. Harrell to the home of some friends on the night of Saturday, May 3rd, for the purpose of playing penny-ante poker. She said Mr. Harrell arrived at her home late, due to the fact that he had had to work. At the request of their hostess, Mrs. Shuford said, she and Mr. Harrell went by the A. B. C. store and purchased one quart of whiskey. They arrived at their friend's home about 10 o'clock, P.M., and in company of the other guests, eight in all, played poker until the early hours of Sunday morning, leaving their hostess' home at approximately 3:30 A.M. She stated that the one quart of whiskey which they had purchased was the only alcoholic beverage at the party and was used to make highballs and each guest had approximately two; that she did not notice exactly what Mr. Harrell had to drink, but he apparently had no more than two drinks and mostcertainly conducted himself in the same manner as the other guests, namely, in a quiet and orderly way. When the party broke up, she...