Kincaid v. Com.

• Decision Date: 01 December 1958
• Docket Number: No. 4874,4874
• Citation: Kincaid v. Com., 105 S.E.2d 846, 200 Va. 341 (1958)
• Parties: CLEM KINCAID v. COMMONWEALTH OF VIRGINIA. Record
• Court: Virginia Supreme Court

Page 846

105 S.E.2d 846

200 Va. 341

CLEM KINCAID v.COMMONWEALTH OF VIRGINIA.

Record No. 4874.

Supreme Court of Appeals of Virginia

December 1, 1958.

E. A. Gentry and Harry E. Webb, Jr., for the plaintiff in error.

D. Gardiner Tyler, Assistant Attorney General(A. S. Harrison, Jr., Attorney General, on brief), for the Commonwealth.

JUDGE: WHITTLE

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

Kincaid was convicted in the circuit court on April 23, 1957, of reckless driving.Twenty-four days thereafter, on May 17, 1957, he was again apprehended and charged with reckless driving.He was tried and convicted of this latter charge on November 6, 1957, and the judgment entered on that conviction is the subject of this appeal.

During the course of the trial the Commonwealth introduced evidence of the previous conviction (April 23, 1957), which evidence was admitted over the objection of the accused wherein he asserted that the evidence was inadmissible as the warrant on which he was being tried did not charge a second offense.

In instructing the jury, over the objection of the accused, the court set forth the penalties for a second offense of reckless driving, and the jury imposed a fine as permitted under the instruction and as provided in the statute(Code, § 46-210as amended; now § 46.1-192, 1958 Cum. Supp.) for a second offense.

The accused moved to set aside the verdict as contrary to the law and the evidence and without evidence to support it, and further urged the court to grant him a new trial on the ground that the court erred in permitting the introduction of evidence relating to the previous conviction.These motions were overruled and judgment was entered on the jury's verdict, from which we granted an appeal.

The accused assigns three errors which he says present the following questions:

'(1) May the Commonwealth in a criminal case introduce evidence of a prior conviction of a similar offense and have the court instruct the jury as to the punishment for a second or subsequent offense where the warrant being tried neither charges nor alleges such prior conviction?

'(2) May a conviction for reckless driving stand where the Commonwealth's evidence fails to identify the defendant as the driver of the vehicle?

'(3) May a defendant in a criminal case be taxed with the costs of a jury without invading his constitutional right to trial by jury?'

Dealing with the first question, Code§ 46-210as amended(now § 46.1-192, 1958 Cum. Supp.), provides inter alia:

Reversed and remanded.

'* * * (Every) * * * person convicted of reckless driving * * * shall for the first violation, be punished by a fine of not less than ten dollars nor more than one hundred dollars, or by imprisonment in jail for not more than thirty days or by both such fine and imprisonment; for each second or subsequent conviction for the offense of reckless driving * * * committed within twelve months from the date of a prior conviction for reckless driving, every such person shall be punished by a fine of not less than fifty dollars, nor more than five hundred dollars, or by imprisonment in jail for not less than ten days, nor more than six months, or by both such fine and imprisonment.'

In this instance the warrant simply charged that the accused did 'unlawfully operate a motor vehicle on the public road in a reckless manner.'Thus he should have been put on trial for the offense as charged and no other.

The Commonwealth argues that the failure of the trial court to amend the warrant as authorized by §§ 16.1-137and19-149 did not prejudice the rights of the accused.With this we do not agree.While it is true that criminal warrants are less technical than indictments, the principles generally involved in prosecutions under them are the same.We have many times held that where an offense is punishable with a higher penalty, because it is a second or subsequent offense of the same kind, the more severe punishment cannot be inflicted unless the indictment charges that it is a second or subsequent offense.Under rules of criminal pleading the indictment must contain an averment of facts essential to the punishment to be inflicted.Shiflett v. Commonwealth, 114 Va. 876, 879, 77 S.E. 606;Keeney v. Commonwealth, 147 Va. 678, 685, 137 S.E. 478;Commonwealth v. Ellett, 174...