King v. Com.

• Decision Date: 14 January 1977
• Docket Number: No. 760543,760543
• Citation: 217 Va. 601,231 S.E.2d 312
• Court: Virginia Supreme Court
• Parties: Linda Diane KING v. COMMONWEALTH of Virginia. Record

Page 312

231 S.E.2d 312

217 Va. 601

Linda Diane KING v.COMMONWEALTH of Virginia.

Record No. 760543.

Supreme Court of Virginia.

Jan. 14, 1977.

Charles E. Carter, Danville, for plaintiff in error.

Jerry P. Slonaker, Asst. Atty. Gen., Richmond (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

The trial court, sitting without a jury, tried the defendantLinda Diane King on two indictments charging her with involuntary manslaughter in the deaths of Gladys Harraway Motley and John Bannister Harraway, resulting from an automobile accident.Finding the defendant guilty on each charge, the court by order entered January 2, 1976, sentenced her to confinement in jail for 12 months and payment of a $1,000 fine on one conviction, and confinement in the penitentiary for five years on the other, and ordered suspension of her operator's license for a period of 12 months on each charge.The penitentiary sentence was suspended during a period of supervised probation.

The accident in which Mrs. Motley and Mr. Harraway were fatally injured occurred on May 18, 1975, at approximately 11:30 p.m. on U.S. Route 29 at its intersection with Route 721 about 2.3 miles north of the city of Danville in Pittsylvania County.The weather was clear; Route 29, a four-lane divided highway, was dry and unlighted.The speed limit was 55 miles per hour.The decedents were passengers in a green 1972 Dodge four-door sedan operated by Mrs. Motley's husband, Augustine Jones Motley, which proceeded south on Route 29 into the turning lane, a third southbound lane, at the Route 721 intersection, began to move eastwardly across the northbound lanes of Route 29 towards Route 721, and was struck by a red 1970 Plymouth Barracuda two-door automobile operated by the defendant in a northerly direction on Route 29.State Trooper, J. W. Minter, the investigating officer, established the point of impact in the right-hand northbound lane of Route 29.He found skid marks leading from this point to the wrecked vehicles, and determined from the damage that the Motley vehicle had been struck in its right side by the front of the King automobile.

Minter testified that when he questioned King the next day the informed him that she had been at Hardee's Restaurant and was driving home at 45 to 50 miles per hour; that she was 'real close' to the Motley car when she first saw it; that she thought she applied her brakes but did not have time to slide; that she stated that she had her lights 'on'; and that she had drunk a cup of wine about 6:00 p.m. on the evening of the accident.

Augustine Jones Motley, 76 years of age, testified that he, his wife, and her brother were returning home after visiting a friend; that he was going south on Route 29 to turn east on Route 721 and proceed to Route 360, on which he lived; that he remained stopped in the turning lane at the intersection of Routes 29 and 721 for 'probably sixty seconds or longer' to permit northbound cars on Route 29 to pass the intersection; that he observed the cars in the darkness by their headlights; that when he started to cross the northbound lanes he did not see any car lights, although he could see approximately 400 feet down the road; and that he received head injuries and remembered nothing about the collision.

Robert T. Calvert testified, over objection, that at approximately 11:30 p.m. he was driving north on Route 29 about 45 miles per hour at the Danville city limits, when a red Barracuda, with only amber parking lights shining, came close behind him.After staying behind him for a few seconds the Barracuda passed him at a high rate of speed, which he estimated at 60 to 70 miles per hour.Calvert continued on his way and 'just a couple of minutes' later came across the wreck in which he identified the Barracuda as one of the two vehicles involved.

William E. Hickson, Jr., a University of Virginia student, testified that he was driving south on Route 29; that he observed the Motley vehicle stopped in the turning lane approximately 10 to 15 seconds, after which it started across the highway; that he saw a 'vehicle coming over the hill with no headlights on' but with 'bery, very dim' amber 'running lights or parking lights' burning; that neither car slowed down before they collided; and that he could not estimate the speed of the Barracuda.

Barnard B. Shelton, Jr., testified that he lived in a trailer one tenth or two tenths of a mile south of the scene of the accident; that he did not see the accident but heard it; that cars frequently raced on the highway; that two to three seconds before he saw a flash and heard the collision he had heard a vehicle that 'was strung out, in other words, it sounded like it would do all it would do'; that he went to the scene, saw, and heard the defendant outside the Barracuda 'screaming to get the other girl out . . . and she said it was her fault.'

King, 20 years of age, testified in her own defense.She insisted that her headlights were burning; that she was driving from 45 to 50 miles per hour when Motley drove in front of her not more than 50 to 75 feet ahead; that her car was noisy; that she was looking at her own lane of travel and did not see the lights of the Motley car until it pulled in front of her; and that she had said at the scene that the accident was not her fault, that 'the guy pulled out in front' of her.She had about a cup of wine at home at 6:00 p.m., then had something to eat, and drove to Skate Town with Sandra Towler.They left there about 11:00 p.m. and stopped at Hardee's Restaurant on the way home.

The defendant testimony was corroborated by that of her passenger, Sandra Towler.Another witness called by the defendant was a friend, Ronnie Dickerson, who testified that he saw the accident as he was driving south on Route 29; that when the Motley vehicle was stopped at the side road the headlights of the King car were visible 'coming over the hill'; and that the Motley vehicle pulled out in front of King when she was about 75 feet away.

By letter opinion dated December 2, 1975, the trial court ruled that the Commonwealth's evidence established beyond a reasonable doubt that King 'was operating her motor vehicle at an excessive rate of speed and without headlights required by statute' and that this was sufficient to constitute involuntary manslaughter.In its opinion the trial court relied on this definition of involuntary manslaughter as restated in Beck v. Commonwealth, 216 Va. 1, 4, 216 S.E.2d 8, 9(1975):

'Involuntary manslaughter is the killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful, but not felonious, act; or in the improper performance of a lawful act.'

The court cited Bell v. Commonwealth, 170 Va. 597, 195 S.E. 675(1938), as controlling authority for the principle that contributory negligence, an available defense in a civil action for personal injuries or death by wrongful act, has no place in an involuntary manslaughter case if the criminal negligence of the defendant is found to be the cause of death.

In accordance with familiar principles we must consider the evidence in the light most favorable to the Commonwealth.Moreover, as the trial court sat without a jury its judgment is entitled to the same weight as a jury verdict, and will not be disturbed by us unless plainly wrong or without evidence to support it.Evans v. Commonwealth, 215 Va. 609, 612--13, 212 S.E.2d 268, 271(1975).

Code§ 46.1--268 (Repl.Vol.1974) required every vehicle upon a highway to display lighted head lamps at night.As King conceded, there was evidence that her vehicle was not displaying such lights, and this evidence, therefore, supports the trial court's finding that King was operating in violation of the headlight statute.

The trial court's finding of excessive speed, necessarily based upon the testimony of Calvert and Shelton, presents a more difficult question.We have been reluctant to permit an inference of excessive speed at one place on a highway from evidence of such speed at another place.Thus, in Grinstead v. Mayhew, 167 Va. 19, 187 S.E. 515(1936), we held that excessive speed 1 1/4 miles from the scene of the accident did not of itself permit the inference of excessive speed at the time of the accident.More recently, however, we have left the admissibility of such evidence to the discretion of the trial court.In Slate v. Saul, 185 Va. 700, 40 S.E.2d 171(1946), the admission of evidence of speed at a point 1/2 mile to 1 1/5 miles away was held not to be an abuse of discretion.And, in Interstate Veneer Co. v. Edwards, 191 Va. 107, 60 S.E.2d 4(1950), we upheld the trial court's admission of evidence of speed 3/4 mile from the place of collision, where another witness testified to the same speed 400 yards from the accident scene and the physical facts evidenced high speed at impact.

We have held that a witness who did not see the vehicle in movement is incompetent to testify from sound alone as to its speed.Meade, Adm'r v. Meade, Adm'r, 206 Va. 823, 828--29, 147 S.E.2d 171, 175(1966).SeeLaubach v. Colley, 283 Pa. 366, 129 A. 88, 89(1925); Annot., 33 A.L.R.3d 1405(1970).In the present case, Shelton did not see the King car before the accident.He testified, without objection, as to the sound of speeding made by a car which passed his trailer a few seconds before he heard the collision.But this alone is not sufficient to establish unlawful speed.We conclude that the trial court's finding of excessive speed at the time of collision is without evidence to support it.The only evidence that King was driving in excess of the speed limit came from a witness who last saw her vehicle before the accident more than two miles from the scene of the collision.

The question remains whether the finding of the trial court that King's violation of...