Newton v. City of Richmond, 4645

Decision Date11 March 1957
Docket NumberNo. 4645,4645
Citation198 Va. 869,96 S.E.2d 775
CourtVirginia Supreme Court
PartiesJAMES S. NEWTON v. CITY OF RICHMOND. Record

F. Ward Harkrader, Jr. (G. William White, Jr., on brief), for the plaintiff in error.

James A. Eichner, Assistant City Attorney, (J. E. Drinard, City Attorney, on brief), for the defendant in error.

JUDGE: MILLER

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

James S. Newton was convicted by a jury and fined one hundred dollars on the charge of operating an automobile on March 24, 1956 while under the influence of intoxicants in violation of § 80, ch. 40 Richmond City Code of 1937. 1 From a judgment confirming the verdict, we granted accused an appeal.

In his assignments of error Newton challenges instruction No. 3 given at the instance of the city and complains of the court's refusal to give instructions A and B tendered by him. Error is also assigned to the court's refusal to strike certain evidence and direct the jury to disregard it.

The city has moved us to reject Newton's assignments of error because of his failure to comply with Rule of Court 1:8 (formerly Rule 22), which follows:

'In civil and criminal cases, all objections to writs of every kind, pleadings, instructions, notices, the admissibility of evidence or other matters requiring a ruling or judgment of the trial court, shall state with reasonable certainty the ground of objection, and, unless it appears from the record to have been so stated, such objections will not be considered by this court except for good cause shown, or to enable this court to attain the ends of justice.'

The record discloses that no objection was made to instruction No. 3, and upon the court's refusal to give instructions A and B, the only notation that appears in the record with regard to either of these instructions was stated thus: 'Exception noted.' Before rendition of judgment accused moved the court to set the 'verdict of the jury aside as being contrary to the law and the evidence and for not allowing him certain instructions in the case', but no ground of objection to the disallowance of instructions was stated.

In construing and applying Rule 1:8 in Harlow v. Commonwealth, 195 Va. 269, 273, 77 S.E.2d 851, we said:

'The only objection to the rulings of the trial court as shown by the record is stated thus: 'Defendant objected and excepted to the action in giving instruction No. 2 offered by the Commonwealth, and to the refusal to give instruction F offered by defendant.'

'Rule 1:8 requires that the trial judge be informed of the precise points of objection in the minds of counsel so that he may rule intelligently, thereby avoiding delay and the expense incident to appeals, reversals and new trials upon grounds of objection which might have been obviated or corrected in the trial court. Therefore this Rule must be adhered to unless the exceptions therein stated apply. Ross v. Schneider, 181 Va. 931, 27 S.E. (2d) 154; Rook v. Atl. Coast Line R. Co., 184 Va. 670, 36 S.E. (2d) 559; Regensburg v. Commonwealth, 159 Va. 1024, 167 S.E. 247. See annotations to Rule 1:8, Cum. Supp., 1950 Code.

In Smith v. Commonwealth, 165 Va. 776, 781, 182 S.E. 124, the following objection was made: 'The foregoing instructions Nos. A, B, C, D, E, F, and G were offered by the defendant and refused by the court to which action of the court the defendants excepted.' This objection was held insufficient because it failed to comply with Rule 22 (now 1:8).'

No objection was made to instruction No. 3, and nothing more than a mere 'exception' was taken to the refusal to give instructions A and B. Clearly this does not constitute compliance with Rule 1:8, and the assignments of error pertaining to the giving and refusal of instructions will not be considered.

The testimony appears in the record in narrative form, and the objection made to the admissibility of certain evidence introduced by the city, which is the basis of an assignment of error, is also set out in narrative form. It follows:

'At this point counsel for the defendant moved the Court to strike from the record and instruct the jury to disregard all the testimony of Dr. Kaye relating to his findings of the blood test, which motion was overruled by the Court, and exception was made the the Court's ruling.'

In accused's brief it is stated that his motion to strike Dr. Kaye's testimony relating to his findings upon analysis of the blood taken from the vial was made because it had not been properly identified. In the record this motion follows immediately after Dr. Kaye's testimony, but as recorded it does not specify the ground of objection as set out in the brief.

Determination of whether or not the objection meets the requirements of Rule 1:8 or should be considered by us to 'attain the ends of justice' depends to some extent upon the scope of this witness's testimony and what part was open to question.

Dr. Kaye is an expert in blood analysis, and the fact that blood taken from a vial that bore accused's name was analyzed by him and that his analysis was correct does not seem to have been questioned when he testified. However, his testimony, though in narrative form, does show that he was subjected to interrogation bearing upon and challenging the identification of the blood that he analyzed. In fact, when all of his narrative testimony is read and weighed, it does not appear that any of it was questioned or challenged except that part that tended to identify the blood. We are thus led to believe that when request to exclude his findings was made, opposing counsel and the court were aware that the motion was directed toward the identification of the blood that had been analyzed. The motion to exclude the evidence from the jury did not properly state the ground relied upon. Yet the character of the witness's testimony, and the setting and circumstances under which the motion was made, disclose its purpose, and to attain the ends of justice, the motion to exclude the blood analysis findings is held to have been sufficient.

Was the evidence identifying the blood sufficient to establish, beyond a reasonable doubt, that the sample analyzed was blood extracted from accused? If not, the motion to exclude Dr. Kaye's findings should have been sustained and the analysis stricken from the jury's consideration.

Dr. Kaye is the State Toxicologist, and his qualifications as an expert in blood analysis to determine alcoholic content and the effect upon the human system of alcohol in the blood stream were conceded. This expert witness expressed the opinion that the drunk-o-meter rest was not so accurate as the blood analysis test. He also said that 'alcohol may affect different people differently at different times,' but that an 'alcoholic content of .15 or more' in the blood 'is sufficient to cause any person to be under the influence of intoxicants' and that a .23 per cent alcoholic content would be definitely consistent with intoxication.

In testifying about his receipt and analysis of the sample of blood in question and how it came into his possession, he said:

'I examined and tested a sample of blood bearing the label as being the blood of James S. Newton taken on March 24, 1956, at the Medical College of Virginia Hospital. I took this sample of blood from the safe as the hospital the day after the same had been taken. My analysis of this blood determined that the blood bore an alcoholic content of .23 per cent. In my opinion this definitely shows that the person from whom the sample was taken was under the influence of intoxicants to a degree where he was not fit to operate an automobile. (Emphasis added.)

* * *

'I did not take the sample, and I could not say for sure who did. I don't know who put it in the safe. I would assume the night superintendent did. I don't know who the physician who took the sample gave it to, but it had to be handled by at least the...

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    ...was Inman, but it is not necessary to resolve the constitutional question in this case. See note 4 supra. 6 E. g., Newton v. Richmond, 198 Va. 869, 96 S.E.2d 775 (1957) (blood test evidence in drunk driving prosecution); Hardeman v. State, 216 Miss. 115, 61 So.2d 797, 802 (1953) (dying decl......
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