Hundley v. Com., 3926

• Decision Date: 10 March 1952
• Docket Number: No. 3926,3926
• Citation: 193 Va. 449,69 S.E.2d 336
• Parties: JOSEPH RICHARD HUNDLEY, JR. v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 336

69 S.E.2d 336

193 Va. 449

JOSEPH RICHARD HUNDLEY, JR. v. COMMONWEALTH OF VIRGINIA.

Record No. 3926.

Supreme Court of Appeals of Virginia

March 10, 1952.

C. Carter Lee, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and D. Gardiner Tyler, Jr., Assistant Attorney General, for the Commonwealth.

JUDGE: WHITTLE

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

Appellant, Joseph Richard Hundley, Jr., was arrested in Franklin county, Virginia, on December 2, 1950, upon a warrant charging him with driving a motor vehicle while under the influence of intoxicants in violation of section 18-75 of the 1950 Code of Virginia, and of reckless driving as prohibited by section 46-208.

Hundley was convicted in the trial justice court. His punishment under the first charge was fixed at a fine of $200 and thirty days in jail, and under the reckless driving charge at a fine of $200.

Upon appeal to the circuit court the defendant was tried before a jury on February 26, 1951, was found guilty of both charges, and his punishment fixed at a fine of $100 on the drunken driving charge and $10 on the charge of reckless driving. To the court's judgment upon the verdicts Hundley was granted a writ of error and supersedeas.

Appellant relies upon four assignments of error which are treated in his brief as follows:

'(1) Can a defendant, who has committed only one act, be convicted of more than one offense in view of section 19-232 of the Code of Virginia, 1950? That is, can a defendant be convicted of the two offenses of driving while drunk and reckless driving which constituted one act at the same time and place.'

Section 19-232 reads: 'If the same act be a violation of two or more statutes or of two or more municipal ordinances or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others. Furthermore, if the same act be a violation of both a State and a federal statute a prosecution or proceeding under the federal statute shall be a bar to a prosecution or proceeding under the State statute.'

When we consider the facts in the case appellant's position becomes untenable. First he was driving a motor vehicle while under the influence of intoxicants in violation of Code, § 18-75, and second, he was driving the automobile recklessly in violation of section 46-208. Before the defendant was apprehended he was driving around curves at a speed of from 75 to 85 miles per hour.

The State trooper who finally arrested him says: 'Each time I pulled up beside him, started to pull up beside him, he cut very sharply over in front of me. He did this at least two, I'll say three times. ' The State trooper was sounding his siren, and says: 'It didn't faze him. He just kept driving. * * * I used every method I could think of in order to stop him because at the rate of speed he was traveling, the manner in which he was operating his car, it was just dangerous.'

These facts disclose more than one act. They show two separate acts resulting in the commission of two offenses, and in such an instance the statute does not apply.

It is conceivable for a person under the influence of intoxicants to drive properly. Many people not under the influence of intoxicants drive recklessly. A test of the identity of acts or offenses is whether the same evidence is required to sustain them; if not, then the fact that several charges relate to and grow out of one transaction or occurrence does not make a single act or offense where two separate acts or offenses are defined by statute, as in the instant case. State v. Bacom, 159 Fla. 54, 30 So. (2d) 744, 172 A.L.R. 1050, 1053; People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902; State v. Empey, 65 Utah 609, 239 P. 25, 44 A.L.R. 558, and 15 Am. Jur., Criminal Law, § 390, pages 65-66.

It frequently has been held that reckless driving and driving while under the influence of intoxicants, where both are involved in the same occurrence, are separate acts and therefore constitute separate offenses, and the prosecution for one offense is no bar to a prosecution for that coupled with it. 22 C.J.S., Criminal Law, § 295; State v. Sisneros, 42 N.M. 500, 82 P. (2d) 274; Usary v. State, 172 Tenn. (8 Beeler) 305, 112 S.W. (2d) 7, 114 A.L.R. 1401; State v. Yuse, 191 Wash. 1, 70 P. (2d) 797; District of Columbia v. Buckley, 75 U.S.App.D.C. 301, 128 F. (2d) 17, cert. den. 317 U.S. 658, 63 S.Ct. 57, 87 L.ed. 529; People v. Skarczewski, 178 Misc.Rep. 160, 33 N.Y.S. (2d) 299, affd. 287 N.Y. 826, 41 N.E. (2d) 99.

Section 19-232 contemplates a conviction of an act or offense prohibited by two or more statutes or ordinances. If a defendant is tried and convicted under one statute or ordinance for the violation of a prohibited act or offense and a prosecution is later instituted under another statute or ordinance which covers the same act or offense, them the first conviction, properly pleaded, would bar the prosecution.

A motion was made by the attorney for the Commonwealth to sever the charges in the warrant. First he desired to try the accused on the charge of driving while under the influence of intoxicants. Appellant objected to the severance and the court, in its sound discretion, denied the motion.

After the evidence was in and while the instructions were being argued appellant changed his position and moved for a severance, which motion was denied. Appellant having objected to a severance when sought by the Commonwealth at the beginning of the trial, cannot now be heard to complain that the court erred in not granting the severance after the case had been fully developed on both charges.

In our jurisdiction several misdemeanors may be tried under one warrant. Upon such a trial the court instructs the jury as to what constitutes each offense charged. In the instant case the court properly instructed the jury as to both charges in the warrant and the verdict returned on each charge was in proper form.

The second assignment of error deals with the propriety of the justice of the peace, before whom the accused was taken for the purpose of bail, testifying as to the condition of the accused.

The justice of the peace was permitted to testify that appellant was under the influence of intoxicants when he appeared before him immediately after his arrest. Appellant objected to this testimony on the ground that section 4781, Virginia Code, 1919, prohibited a justice of the peace from testifying to statements made to him by the accused while on trial.

When our trial justice system was established the jurisdiction to try misdemeanor cases was transferred from justices of the peace to trial justices, and section 4781 was amended. This amendment is now section 19-241, Virginia Code, 1950. The amended section eliminates 'justice of the peace' and substitutes 'trial justice'. This change removes any statutory prohibition against a justice of the peace testifying, and there is no common law rule which prohibits such testimony. In any event, the statutory prohibition was against a justice of the peace testifying as to 'statements made by the accused on his trial'. (§ 4781, Code, 1919; § 19-241, Code, 1950)...