Miles v. Com.

• Decision Date: 11 September 1964
• Citation: 138 S.E.2d 22,205 Va. 462
• Parties: Richard S. MILES v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 22

138 S.E.2d 22

205 Va. 462

Richard S. MILES v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Sept. 11, 1964.

S. W. Tucker, Richmond (Henry L. Marsh, III, Richmond, on brief), for plaintiff in error.

Harold V. Kelly, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, WHITTLE, SNEAD, I'ANSON and CARRICO, JJ.

SNEAD, Justice.

This is an appeal by Richard S. Miles, the defendant, from a conviction on a State warrant of unlawfully operating a motor vehicle in a reckless manner in the city of Richmond.

On February 15, 1963, defendant was issued a summons by city police officer Jesse W. Williams, which charged that he unlawfully 'failed to yield right of way' in violation of an ordinance of the city. From a conviction of that charge in the Traffic Court of the City of Richmond, Miles perfected an appeal to the Hustings Court. There, on April 4, he was arraigned and pleaded not guilty. A jury trial was waived. After the city had introduced its evidence and rested its case, defendant moved to strike the city's evidence and to dismiss the proceeding. Subsequent to argument of counsel and before the court had ruled on the motion, the city was permitted to enter a plea of nolle prosequi over the objection of defendant. Thereafter, on the same day, an information for a misdemeanor was 'made and filed' by an Assistant Commonwealth's Attorney, charging that defendant 'did unlawfully operate a motor vehicle in a reckless manner against the peace and dignity of the Commonwealth of Virginia.'

When this case was called for trial on April 16, defendant filed a 'Plea in Bar'. In it he alleged 'that the said information is based on the same acts and conduct and has reference to the same matter and transaction as was the summons on which he was tried on the 4th day of April, 1963,' and that any further prosecution of defendant on the information would be in violation of Section 8 of the Constitution of Virginia, which provides that no man shall be put twice in jeopardy for the same offense. A replication was filed on behalf of the Commonwealth, stating that the information alleged 'an entirely separate and distinct offense' from that for which defendant had been 'tried and acquitted'. The court reserved its decision on the plea and ordered that the trial proceed without prejudice to defendant's rights asserted therein. The defendant pleaded not guilty to the charge contained in the information. At the conclusion of the Commonwealth's evidence and again at the conclusion of all the evidence defendant's motions to strike the Commonwealth's evidence were overruled. The jury returned a verdict finding defendant guilty as charged and fixed his punishment at a fine of $50. The defendant moved the court to set aside the verdict as being contrary to the law and evidence and renewed his motion to quash the information on the grounds stated in his plea. The court continued both motions until May 7, at which time they were overruled and judgment was entered on the verdict. We granted defendant a writ of error.

The evidence before us is in narrative form and it consists of the testimony of officer Williams, Miles and Marta Anderson. Since the statement of their testimony is brief, it will be quoted verbatim.

Officer Williams testified: 'That on February 15, 1963, at 7:45 P.M., and in the City of Richmond, he was driving a plice cruiser northwardly on Chamberlayne Avenue; that the traffic light was green as he approached Overbrook Road; that driving at a speed between 30 and 35 miles per hour, he crossed Overbrook Road in the westernmost of the three landes for north bound traffic, thus entering the 2500 block; that from a point in the right hand lane of Chamberlayne Avenue, a short distance north of Overbrook Road, where a taxicab had been stopped, the defendant drove the taxicab northwardly and diagonally across the middle traffic lane and into the westernmost lane for northbound traffic in front of the moving police car thus making it necessary for the police officer to apply his brakes 'violently' in order to avoid a collision; that at the next corner the taxicab turned to the left and, the turn being completed, the officer ordered the taxicab driver to stop and issued him a summons charging that he, unlawfully, 'failed to yield right of way'; that the defendant stated that when he pulled from the curb he did not see anything coming, that he looked to his rear and saw nothing to prevent his entering the left hand traffic lane; that the tires of the police vehicle audibly skidded when he applied his brakes.

'The defendant, Richard Miles, called as a witness in his own behalf, testified as follows: that he stopped at the curb on Chamberlayne Avenue several car lengths north of its intersection with Overbrook Road and discharged his passenger; that he looked to the rear and noticed that the traffic light was red for northbound traffic; that he saw no car approaching; that he pulled from the curb and slowly guided his automobile into the left lane of Chamberlayne Avenue; that he heard no sound of tires screeching and did not observe the police car until he had reached the corner and prepared to make a left turn and was directed by the officer to pull over to the curb.

'The defendant also called as a witness Marta Anderson, of 1705 Tyler Street, Richmond, Virginia, who testified that she was the passenger who was discharged from the taxicab driven by the defendant; that she paid her fare, left the taxicab in front of the Spotless Store on Chamberlayne Avenue and walked to the laundermat (sic) located several stores north of the point where the taxicab had stopped; that she was not looking in the direction of the taxicab as it pulled away from the curb, but that she did not see the police car nor hear any brakes screech.'

It was stipulated that officer Williams was the only witness to testify for the prosecution when defendant was tried on the summons which charged that he 'failed to yield right of way'; that his testimony at that trial was identical with his testimony given in the subsequent trial for reckless driving, and that both charges grew out of identical evidence.

The defendant has made two assignments of error. First, he asserts that the court erred in overruling his 'Plea in Bar' and thus permitting him to be placed twice in jeopardy for the same offense. Second, he contends that the court erred in overruling his motion to strike the Commonwealth's evidence and in refusing to set aside the verdict.

Section 8 of the Constitution of Virginia provides in part:

'That in criminal prosecutions a man * * * shall not * * * be put twice in jeopardy for the same offense.'

The defendant takes the position that when evidence was received by the court on the charge of failure to yield the right of way he was placed in jeopardy. This jeopardy, he says, was not limited to that particular charge but extended to every charge to which the summons could have been amended. He argues that under Code, § 19.1-175 the city could have amended the summons at any time before judgment to charge reckless driving, a related offense, and that he was, therefore, placed in jeopardy for that charge. Thus, he maintains that the trial on the information for reckless driving put him twice in jeopardy for the same offense.

Code, § 19.1-175, supra, provides:

'An amendment of any defect in an indictment or presentment for a misdemeanor that does not change the nature of the offense charged may be made by the court before which the trial is had, at any time before judgment is entered * * *.' (Ehphasis added.)

Assuming, but...