Rodgers v. Com., 4458

• Court: Supreme Court of Virginia
• Citation: 90 S.E.2d 257,197 Va. 527
• Docket Number: No. 4458,4458
• Parties: CHARLES EDWARD RODGERS v. COMMONWEALTH OF VIRGINIA. Record
• Decision Date: 28 November 1955

Page 257

90 S.E.2d 257 197 Va. 527 CHARLES EDWARD RODGERS
v.
COMMONWEALTH OF VIRGINIA. Record No. 4458. Supreme Court of Appeals of Virginia November 28, 1955.

Gilmer, Harman & Sadler, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and R. D. McIlwaine, III, Assistant Attorney General, for the Commonwealth.

JUDGE: BUCHANAN

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

[197 Va. 528] Charles Edward Rodgers has been convicted of operating a motor vehicle while under the influence of intoxicants, Code § 18-75, and sentenced to pay a fine. He assigns error to the admission in evidence of the results of an analysis of blood alleged to be his, and to the giving of an instruction to the jury.

On the night of December 2, 1953, a car driven by Rodgers was involved in a collision with another car on U.S. Highway 11 a short distance east of Dublin, in Pulaski county. A Dublin police officer went to the scene and found the defendant 'wobbly and

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staggering' and with a strong odor of alcohol on his breath. He expressed the opinion that Rodgers was 'considerably intoxicated.'

A State trooper was called and found the defendant standing beside his automobile. He had an odor of alcohol on his breath, seemed to be unsteady on his feet and was not coherent. In the opinion of the trooper the defendant was intoxicated. He placed him under arrest and brought him to Pulaski, the county seat.

The evidence given by the defendant and his witnesses was to the effect that he was not intoxicated. The resulting conflict in the evidence was for the jury to settle.

On the way to Pulaski the defendant insisted on being taken to the Pulaski hospital for a blood test. The trooper took him there and a sample of his blood was taken. At the beginning of the trial the defendant objected to the introduction of the blood analysis unless it was properly identified. Thereupon, in the absence of the jury, the court heard evidence on the point from the trooper, the technician who took the sample and the State Toxicologist. The defendant then moved to exclude from the evidence the result of the analysis because the sample analyzed had not been sufficiently identified. The court overruled the motion and defendant excepted.

We may assume, without deciding, that the trial court ruled correctly that the evidence heard by it furnished a sufficient foundation for the introduction of the analysis. Thereupon, as stated in the Commonwealth's brief, it was for the jury to determine after hearing the testimony submitted to it whether the blood analyzed was that taken from the defendant. Pomainville v. Bicknell, (Vt.), 109 A. (2d) 342; Annotation, 21 A.L.R. (2d) 1216, at 1219.

While the evidence heard by the jury on the question of the identity of the blood came from the same witnesses who testified before the court, their testimony before the jury, as shown by the [197 Va. 529] record, omitted some important statements made to the court. The evidence before the jury was as follows:

A doctor connected with the Pulaski hospital testified that on the request of the trooper he authorized the technician, Miss Phipps, to take the blood sample but he was not at the hospital when it was done and knew nothing further about it.

The technician testified that she was called from her home to the hospital on December 2, 1953, about ten or ten-thirty at night, and there took a sample of blood, using standard procedure for an alcohol test, from a person who said his name was Rodgers. She did not recognize him in the courtroom. She said she put the blood into two tubes, one plain and one with potassium oxalate. She did not remember whether the trooper furnished her with a tube. She did not remember whether she labeled the tubes but said she prepared them both for mailing to the State laboratory. On cross-examination she said she sent both of the tubes away, either to Abingdon or Richmond, her best impression was...