Owens v. Commonwealth

• Decision Date: 20 January 1927
• Citation: 136 S.E. 765
• Parties: OWENS . v. COMMONWEALTH.
• Court: Virginia Supreme Court

136 S.E. 765

OWENS .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 20, 1927.

Error to Corporation Court of Norfolk.

Leon M. Owens was convicted of driving an automobile while under the influence of intoxicants, and he brings error. Affirmed.

Venable, Miller, Pilcher & Parsons, of Norfolk, for plaintiff in error.

John R. Saunders, Atty. Gen., for the Commonwealth.

CAMPBELL, J. On the 5th day of October, 1925, the attorney for the commonwealth filed in the corporation court of the city of Norfolk an information against the defendant, Leon M. Owens, as follows:

"Be it remembered that Thomas H. Willcox, Tr., attorney for the commonwealth for the said city of Norfolk, and who for the said commonwealth prosecutes in this behalf, in his proper person comes into the said court on this the 5th day of October, in the year 1925, and upon the complaint in writing verified by the oath of R. A. Fine, a competent witness, gives the said court here to understand and be informed that Leon M. Owens on the 16th day of September. 1925, in the said city of Norfolk, did unlawfully run and drive an automobile while under the influence of intoxicants, against the peace and dignity of the commonwealth of Virginia."

A trial by jury was had, which resulted in a verdict of guilty, fixing the punishment of the defendant at 30 days' confinement in jail and a fine of $100. There was a motion to set aside the verdict and award the defendant a new trial on the grounds that the verdict was contrary to the law and the evidence. This motion was overruled, and the court proceeded to enter the following judgment:

"This day came again the defendant, and also came the attorney for the commonwealth, and the motion for a new trial, heretofore made on the 17th day of November, 1925, having been fully heard by the court, is overruled, to which action of the court in overruling said motion, the defendant, by counsel, duly excepted. Whereupon it is considered by the court that the said defendant be sentenced on the state convict road force for the period of 30 days, and fined the sum of $100, and be required to pay the costs of his prosecution. It is further considered by the court that the said defendant be so confined on the state convict road force after he shall have served the said term of 30 days, until he shall have paid the fine and costs aforesaid, or is otherwise released by due process of law, provided, however, that such confinement shall not exceed six months, and which said six months' confinement for the nonpayment of the fine and costs aforesaid shall be in addition to the term of 30 days as herein fixed."

The evidence in the case may be summarized thus:

On the night of September 16, 1925, the accused, operating an automobile in the city of Norfolk, about 11 o'clock, had a collision with an automobile driven by a man named Fine. At the time of the accident the accused had one Walden, who was very drunk, in his automobile. After the collision, one Hoffheimer went to the scene, and, when testifying, stated that, although he did not know who drove the automobile, one of the occupants was very drunk, and the other drinking. The policeman who made the arrest testified that, in his opinion, the accused was drunk, although he could not define exactly what he meant by drunkenness, and that the man with him was very drunk. The policeman further testified that he could not say whether or not the accused was so under the influence of liquor as to affect his ability to drive an automobile.

Charges of drunkenness were preferred against both the accused and Walden, and the next morning Walden was fined for being drunk. The charge of drunkenness against the accused was dismissed by the police justice, but the accused was sent on to the corporation court by the police justice on the charge of operating an automobile while under the influence of liquor.

The accused admitted driving the automobile, and that about 3 o'clock on the afternoon preceding the night on which the accident happened he had taken two moderate sized drinks, but was not drunk. The accused was shown to have an excellent character.

It is assigned as error that the court erred in granting an instruction on behalf of the commonwealth, reading as follows:

"The court instructs the jury that, if they believe from the evidence beyond a reasonable doubt that the accused, in the city of Norfolk, was driving an automobile, and while so driving he was under the influence of intoxicants to such an extent that his ability to drive with safety to himself and others was thereby materially impaired, they should find the accused guilty as charged in the information, and fix the punishment at confinement in jail for not less than 30 days and not more than one year, and a fine of not less than $100 and not more than $1,000."

There is no merit in this assignment. The instruction complained of was more favorable to the defendant than he was entitled to.

It should not have been given, as it placed the burden upon the commonwealth of proving beyond every reasonable doubt that, while the accused was driving the automobile, he was under the influence of intoxicants to such an extent that his ability to drive with safety to himself and others was thereby materially impaired.

The prohibition law (Laws 1924, c. 407) does not place such a burden upon the commonwealth. Section 25 of the law provides that—

"it shall be unlawful for any person to drive or run any automobile, * * * while under the influence of intoxicants. * * *"

Therefore the test to be applied in a prosecution under section 25 is not merely the ability of the driver to operate the automobile with safety to himself and others, but whether or not he is under the influence of intoxicants at the time he is driving or running an automobile, and this question is one of fact which must be determined by the jury.

The second assignment of error relates to the action of the court in sustaining the objection of the attorney for the commonwealth to the following question propounded to the police justice by counsel for the defendant:

"Who made the charge against the accused of operating an automobile while under the influence of liquor?"

This assignment is without merit.

In Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 26 S. E. 421, 36 L. R. A. 271, 64 Am. St. Rep. 715, it is said:

"In order to show that the trial court erred in rejecting an offer of evidence, or in excluding evidence, the bills of exceptions must show the materiality of the evidence tendered. Where a question is asked, and the witness is not permitted to answer, the bill of exceptions must show what the party offering the witness expected or proposed to prove by him. If the witness is permitted to answer, and the answer is excluded, it should show what the answer was. This is necessary because it may be that the witness had no knowledge upon the subject, or what he knew was irrelevant or immaterial. A judgment will not be reversed because evidence has been excluded or rejected by the trial court unless its materiality is made to appear. Caperton v. Utz, 4 Grat. [45 Va.] 272; Johnson's Ex'x v. Jennings, 10 Grat. [51 Va.] [1, 60 Am. Dec. 323]; McDowell's Ex'r v. Crawford, 11 Grat. [52 Va.] 387; Martz v. Martz, 25 Grat. [66 Va.] 367; Stoneman's Case [25] Grat. [06 Va.] 887; Continental Ins. Co. v. Kasey [25] Grat. [66 Va.] at page 276 ; Beirne v. Rosser & Turner, 26 Grat. [67 Va.] 537, 547; Valley Mut Life Ass'n v. Teewalt, 79 Va. 421; Taylor v. Commonwealth, 90 Va. 110 ."

When the court sustained the objection to the question, it was incumbent upon the defendant to make the record show the expected answer. This has sometimes been done by avowal of counsel, but the better practice is to permit the witness to...