Herchenbach v. Commonwealth, Record No. 3116.

• Decision Date: 10 June 1946
• Docket Number: Record No. 3116.
• Citation: 185 Va. 217
• Court: Virginia Supreme Court
• Parties: EUGENE C. HERCHENBACH v. COMMONWEALTH OF VIRGINIA.

Page 217

185 Va. 217

EUGENE C. HERCHENBACH v. COMMONWEALTH OF VIRGINIA.

Record No. 3116.

Supreme Court of Virginia, Richmond.

June 10, 1946.

Present, All the Justices.

1. APPEAL AND ERROR — Affirmance — Weight of Judgment of Trial Court without Jury. — A judgment of conviction by a trial court without a jury is entitled to the same weight as a verdict of a jury approved by the trial court.

2. AUTOMOBILES — Leaving Scene of an Accident — Duty Imposed by Statute Positive. — The duty imposed by section 2154(104) of the Code of 1942, the "hit and run" statute, upon the driver of a vehicle involved in an accident is not passive. It requires positive, affirmative action, that is, to stop and give the aid and information specified.

3. AUTOMOBILES — Leaving Scene of an Accident — Knowledge Is Essential Element. — Knowledge necessarily is an essential element of the crime of violating section 2154(104) of the Code of 1942, the "hit and run" statute.

4. AUTOMOBILES — Leaving Scene of an Accident — Elements of Offense. — In order to be guilty of violating section 2154(104) of the Code of 1942, the "hit and run" statute, the driver must be aware that harm has been done; it must be present in his mind that there has been an injury; and then, with that in his mind, he must deliberately go away without making himself known. If an injury is inflicted under such circumstances as would ordinarily superinduce the belief in a reasonable person that injury would flow, or had flowed, from the accident or collision, then it is the duty of the operator to stop his vehicle.

5. INDICTMENTS, INFORMATION AND PRESENTATIONS — Indictment in Words of Statute. — An indictment stating a crime in the words of the statute is sufficient.

6. AUTOMOBILES — Leaving Scene of an Accident — Sufficiency of Evidence to Show Knowledge of Accident — Case at Bar. — In the instant case, a prosecution for violating section 2154(104) of the Code of 1942, the "hit and run" statute, the body of a man, with the head crushed, was found lying on the highway over which a bus driven by accused had passed, and blood and hair were found on a wheel of the bus. Accused denied any knowledge of the accident, and it was conceded that the night in question was foggy and that the fog was so dense that it was impossible for the operator to see more than a few feet in advance of his vehicle. The coroner testified that it was impossible to tell whether the deceased was living or dead at the time his skull was crushed. Accused, after discharging his passengers, took his bus to the garage and left immediately without making any attempt to remove the blood stains and hair from the wheel.

Held: That the evidence was not sufficient to establish one essential element of the offense, namely, that accused knew his bus had struck decedent.

Error to a judgment of the Circuit Court of Prince George county. Hon. J. Jordan Temple, judge presiding.

The opinion states the case.

Sands, Marks & Sands, for the plaintiff in error.

Abram P. Staples, Attorney General, and V. P. Randolph, Jr., Assistant Attorney General, for the Commonwealth.

HUDGINS, J., delivered the opinion of the court.

This writ of error brings under review the record of the trial and the judgment of conviction of the accused, who was charged with violation of Michie's Code 1942, sec. 2154(104), (the "Hit and Run" statute).

The only error assigned is the insufficiency of the evidence to support the judgment.

On September 8, 1945, between 3:00 and 4:00 A.M., the body of Charles Taylor was found approximately a mile and a half east of Disputanta on Route 460. The body was lying on its left side and the feet were within 6 inches of Taylor's motor bike, which was jacked up with a rear flat tire approximately 6 inches south of the south edge of the hard surface, with the body extending at approximately right angles across the highway. The head was mashed to a pulp, and brains and broken bones were scattered on the highway. The right arm was broken in two places. The sheriff of Prince George County examined the body and later brought the coroner and a State policeman to the scene. A thorough examination revealed no evidence tending to prove who was responsible for the death of decedent. On their return to Petersburg, the officers ascertained that three Greyhound buses had passed through Petersburg en route to Norfolk. One left Richmond at approximately 1:00 A.M., another at 2:05 A.M., and the third at 3:00 A.M. The police in Norfolk were notified to examine these buses for evidence tending to show that any one of them had been in an accident. The first examination of the three buses revealed no incriminating evidence. Later in the day, a Greyhound mechanic discovered marks resembling blood spots on the right rear tire wall and hair on the wheel of the bus that had let Richmond at 2:05 A.M. The police were called back and verified the fact that the blood stains and hair were human. Thereupon a warrant was sworn out for E. C. Herchenbach, the driver of the bus which passed the scene of the accident at about 3:30 A.M., charging him with involuntary manslaughter.

The involuntary manslaughter charge was dismissed on the preliminary examination, but the accused was held on the charge of violating the "Hit and Run" statute, indicted, tried and convicted.

There is very little conflict in the testimony. Even so, the judgment of conviction by a trial court without a jury is entitled to the same weight as a verdict of a jury approved by the trial court.

The accused contends that the Commonwealth failed to prove that he knew that his bus had been involved in an accident. The Attorney General contends that knowledge is not essential to a conviction under the statute, and that, even if it is essential, the facts and circumstances are sufficient to charge the accused with knowledge.

The pertinent provisions of the statute are: "The driver of any vehicle involved in an accident resulting in injuries to or death of any person, or damage to property, shall immediately stop at the scene of such accident or as close thereto as is possible without obstructing traffic and give to the person struck and injured, or...