Owens v. Commonwealth

Decision Date20 January 1927
Citation147 Va. 624
PartiesLEON M. OWENS v. COMMONWEALTH.
CourtVirginia Supreme Court

1. INTOXICATING LIQUOR — Automobiles — Driving Automobile while Under the Influence of Intoxicants — Instructions — Harmless Error — Case at Bar. — In the instant case, a prosecution for driving an automobile while under the influence of intoxicants, defendant assigned as error an instruction that if the jury believed that accused 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."

Held: That while the instruction was erroneous because more favorable to the defendant than he was entitled to, yet the error was not prejudicial to the accused.

2. INTOXICATING LIQUOR — Automobiles — Driving Automobile while Under the Influence of Intoxicants. Section 25 of the prohibition act of 1924 (section 467525 of the Code of 1924) provides that: "It shall be unlawful for any person to drive or run any automobile while under the influence of intoxicants." Under this provision the burden is not upon the Commonwealth to prove that, while he was driving an automobile, accused was under the influence or intoxicants to such an extent that his ability to drive with safety to himself and others was thereby materially impaired. The test to be applied, in a prosecution under section 25, it 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.

3. INTOXICATING LIQUORS — Automobiles — Driving Automobile while Under the Influence of Intoxicants — Questions of Law and Fact. — Whether or not accused when driving an automobile was under the influence of intoxicants is a question for the jury.

4. EVIDENCE — Appeal and Error — Sustaining Objection to Questions — Expected Answer. — Where the court sustained an objection of the Commonwealth's attorney to a question in order to show that the trial court erred, it was incumbent upon the defendant to make the record show the expected answer.

5. EVIDENCE — Appeal and Error — Sustaining Objection to Question — Expected Answer. — In order to show that the trial court erred in rejecting an offer to evidence, or in excluding evidence, the bills of exception 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. A judgment will not be reversed because evidence has been excluded or rejected by the trial court unless its materiality is made to appear.

6. EVIDENCE — Appeal and Error — Sustaining Objection to Question — Expected Answer — How Shown. — Where an objection to a question is sustained the expected answer may be shown by avowal of counsel, but the better practice is to permit the witness to answer the question in the absence of the jury.

7. EXCEPTIONS, BILL OF — Necessity — Objection Noted to Question. — The fact that counsel noted an exception to the ruling of the court in excluding evidence does not suffice. The only method by which the ruling of the court can be called in question is by a certificate, as provided by statute, or by a bill of exceptions.

8. INTOXICATING LIQUOR — Automobiles — Driving Car while Under Influence of Intoxicants — Question for Jury — Evidence Held Sufficient to Support Verdict of Guilty. — In the instant case, a prosecution for driving an automobile while under the influence of intoxicants, a witness testified that defendant had been drinking. In the opinion of the police officer who arrested him, defendant was drunk. Defendant himself stated that he had taken two drinks on the afternoon of the accident. Whether or not defendant was under the influence of intoxicants was a question for the jury. They found the defendant guilty. The trial court sanctioned their verdict and on appeal the case stood as practically on a demurrer to the evidence.

Held: That the appellate court could not say that the verdict was without evidence to support it.

9. INTOXICATING LIQUOR — Automobiles — Autre Fois Acquit or Convict — Appeal and Error — Question Raised for First Time on Appeal — Case at Bar. — In the instant case, a prosecution for driving an automobile while under the influence of intoxicants, defendant contended that because he had been tried upon a charge of being intoxicated and had been acquitted, under section 4775 of the Code of 1919, this was an adjudication of the question of driving an automobile while under the influence of intoxicants and barred the present prosecution.

Held: That under rule 22 of the Supreme Court of Appeals, the defendant could not for the first time raise this question on appeal. Moreover, it did not appear that accused was acquitted but merely that the warrant was dismissed.

10. INTOXICATING LIQUOR — Sentence and Punishment — Work on the Public Roads. — In the instant case, a prosecution for driving an automobile while under the influence of intoxicants, the verdict of the jury was that accused should serve thirty days in jail. The court sentenced accused to serve his sentence on the State convict road force instead of in jail.

Held: That under section 38 of the prohibition act (section 467538 of the Code of 1924) this was not error.

11. INTOXICATING LIQUOR — Sentence and Punishment — Working Out Fine and Costs on Convict Road Force. — In the instant case the jury assessed accused punishment, for driving a car while under the influence of intoxicants, at thirty days in jail and a fine. The court added to accused's term six months on the convict road force if he failed to pay the fine assessed against him.

Held: That under section 8 of the prohibition act (section 46758 of the Code of 1924) the imposition of the punishment here prescribed for the nonpayment of the fine and costs was expressly provided for.

Error to a judgment of the Corporation Court of the city of Norfolk.

The opinion states the case.

Venable, Miller, Pilcher & Parsons, for the plaintiff in error.

John R. Saunders, Attorney General, Leon M. Bazile and Lewis H. Machen, Assistant Attorneys General, for the Commonwealth.

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

On the fifth 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, Jr., attorney for the Commonwealth for the said city of Norfolk, and who for the said Commonwealth prosecutes in this behalf, in his proper person come into the said court on this the fifty 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 thirty days confinement in jail and a fine of one hundred dollars. 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 thirty days and fined the sum of one hundred dollars, 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 thirty 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 thirty 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 eleven 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...

To continue reading

Request your trial
35 cases
  • Jones v. Cunningham
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 16 Enero 1963
    ... ... Unassisted and unadvised by counsel, Jones had waived preliminary hearing and indicated to the Commonwealth attorney, the only attorney with whom he had talked, his willingness to relinquish his right to indictment and to plead guilty to all six ... purpose of which was to eliminate the hardship inherent in prosecutions under two statutes based upon a single criminal transaction, See Owens v. Commonwealth, 129 Va. 757, 105 S.E. 531 (1921) ...         8 A mere motion to dismiss the informations would not suffice. Sigmon v ... ...
  • Com. v. Connolly
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 28 Febrero 1985
    ...474 N.E.2d 1106 ... 394 Mass. 169 ... COMMONWEALTH" ... Robert CONNOLLY ... Supreme Judicial Court of Massachusetts, ... Middlesex ... Argued Dec. 4, 1984 ... Decided Feb. 28, 1985 ...       \xC2" ... 2 State v. Storrs, 105 Vt. 180, 163 A. 560 (1933), reaffirmed in State v. Wall, 137 Vt. 482, 487, 408 A.2d 632 (1979); Owens ... ...
  • Gardner v. Commonwealth
    • United States
    • Virginia Supreme Court
    • 5 Junio 2014
    ... ... R. Evid. 2:103(a)(2). Counsel is required to proffer the substance of the anticipated testimony. Whittaker v. Commonwealth, 217 Va. 966, 968–69, 234 S.E.2d 79, 81 (1977); Scott v. Commonwealth, 191 Va. 73, 78–79, 60 S.E.2d 14, 16 (1950); Owens v. Commonwealth, 147 Va. 624, 630–31, 136 S.E. 765, 767 (1927); Union Central Life Ins. Co. v. Pollard, 94 Va. 146, 156–57, 26 S.E. 421, 423–24 (1896).          A criminal defendant may prove his good reputation for a particular character trait by presenting “[n]egative evidence ... ...
  • Gosling v. Com.
    • United States
    • Virginia Court of Appeals
    • 24 Marzo 1992
    ... Page 870 ... 415 S.E.2d 870 ... 14 Va.App. 158 ... Gary A. GOSLING ... COMMONWEALTH of Virginia ... Record No. 1700-90-2 ... Court of Appeals of Virginia ... March 24, 1992 ... Page 871 ...         [14 Va.App ... See Wyche v. Commonwealth, 218 Va. 839, 842, 241 S.E.2d 772, 775 (1978); Owens v. Commonwealth, 147 Va. 624, 630-31, 136 S.E. 765, 767 (1927); Klein v. Klein, 11 Va.App. 155, 160, 396 S.E.2d 866, 869 (1990); Lowery v ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT