Slayton v. Commonwealth

• Decision Date: 10 June 1946
• Citation: 185 Va. 357,38 S.E.2d 479
• Parties: SLAYTON. v. COMMONWEALTH.
• Court: Virginia Supreme Court

185 Va. 357

38 S.E.2d 479

SLAYTON.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 10, 1946.

Error to Circuit Court, Campbell County; Charles E. Burks, Judge.

Lloyd E. Slayton was convicted of driving while under the influence of intoxicating liquor and a 60-day jail sentence was suspended during good behavior. To review a judgment of the circuit court which affirmed the judgment of trial justice revoking the suspension of the sentence, defendant brings error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Williams, Miles & Williams, of Danville, and Stowers & Stowers, of Altavista, for plaintiff in error.

Abram P. Staples, Atty. Gen., and Jos. L. Kelly, Jr., Asst. Atty. Gen., for the Commonwealth.

EGGLESTON, Justice.

This writ of error brings under review certain orders of the Circuit Court of Campbell county which affirmed the judgment of the trial justice of that county in revoking the suspension of a sixty-day jail sentence previously entered by the trial justice against the plaintiff in error, Lloyd E. Slay-ton. A somewhat detailed statement of the factual background is necessary to a proper appraisal of the issues involved.

On February 2, 1945, Slayton was convicted by the trial justice of driving while under the influence of intoxicating liquor. He was fined $100 and costs and given a jail sentence of sixty days. The jail sentence was suspended "during good behav ior" and upon payment of the fine and costs. This conviction resulted in the suspension of Slayton's permit to operate an automobile during the ensuing year. Acts of 1944, ch. 384, p. 587, § 16(a); Michie's 1944 Supp. to the Virginia Code of 1942, § 2154(al6).

On June 23, 1945, Slayton was arrested on a warrant charging him with reckless driving and driving after his operator's license had been revoked, in violation of the statute. Acts of 1944, ch. 384, p. 587, § 87; Michie's 1944 Supp. to the Virginia Code of 1942, § 2154(a87).

This latter charge came on to be heard by the trial justice on July 6, at which time J. H. Barnes, the State police officer who had made the arrest, testified unequivocally that Slayton, whom he knew personally, was driving the car on June 23 as it approached the town of Altavista, and that he made the arrest immediately after the car had been brought to a stop in the town and before Slayton had gotten out of his seat from under the driver's wheel. He further testified, without contradiction, that at the time of the arrest Slayton made no contention that he had not been actually driving the car.

However, Slayton testified at the hearing before the trial justice that at the time in question the car was being driven not by him, but by his companion, Lee Carter. This testimony of Slayton was corroborated by that of Lee Carter, Lee McDaniel, and Shirley Hedrick, other occupants of the car. It was further corroborated by the testimony of Junior Lanier and Junior Epperson, who claimed to have been seated in a car which was parked in the town near the place where the Slayton car was stopped at the time of the arrest.

When the defense produced this testimony, Barnes, the arresting officer, asked and obtained a continuance of the case for a week in order that he might procure other witnesses to corroborate his testimony that Slayton was actually driving the car at the time in question. Barnes, however, did not produce any such corroborating witnesses, but he obtained written confessions from Lanier and Epperson, and a verbal confession from Hedrick, that they had testifiedfalsely before the trial justice on July 6, that Slayton was not driving the car, and that they had done so at Slayton's instance and request. Later, Lanier and Epperson admitted to the Commonwealth's attorney of Campbell county, and to R. V. Rorer, a police officer of Pittsylvania county, that they had testified falsely.

Barnes promptly reported the matter to the Commonwealth's attorney, and on July 9 a grand jury indicted Slayton, Carter, McDaniel, Hedrick, Lanier, and Epperson for perjury, and Slayton for subornation of perjury.

On July 13 the trial justice completed the hearing and found Slayton guilty of the charge that he had driven the car on June 23, after his driver's permit had been suspended. From this judgment of conviction Slayton appealed to the circuit court.

On the same day, July 13, the trial justice revoked the suspension of the jail sentence which he had imposed on Slayton in the judgment of February 2, 1945. From this judgment of the trial justice, revoking the suspension of sentence, Slayton likewise appealed to the circuit court.

On July 20 Slayton was tried on the indictment for subornation of perjury and was acquitted by a jury. The testimony taken at that trial is incorporated in the record before us. It shows that Hedrick, who, as has been stated, was an occupant of the car at the time of Slayton's arrest on June 23, testified that Slayton was at that time driving the car. Hedrick, in accordance with his confession to officer Barnes, also testified that his testimony to the contrary, before the trial justice on July 6, was false, and that such false testimony had been given at Slayton's request.

Lanier and Epperson, however, repudiated their confessions to the officers that they had testified falsely at the hearing before the trial justice. They likewise repudiated their confessions that such alleged false testimony had been procured at Slayton's request. Both Lanier and Epperson insisted that Slayton was not driving the car at the time of his arrest on June 23, and that their confessions had been procured through fear and duress.

On October 15 Slayton's appeal from the judgment of the trial justice finding him guilty of driving on June 23, after his permit had been suspended, was heard by the circuit court and a jury. A verdict of acquittal was rendered. The testimony heard there is likewise incorporated in the present record, and follows the same pattern as that given at Slayton's trial for subornation of perjury on July 20.

Immediately after Slayton's acquittal on October 15, the circuit court disposed of his appeal from the order of the trial justice revoking the suspension of the previous jail sentence. It affirmed the revocation of the suspension by the following order:

"As provided in Section 1922(B) of the Code of Virginia and for cause deemed sufficient by this Court, the Court affirms the action of the Trial Justice of Campbell County on the 13th day of July, 1945, in revoking the suspension of a jail sentence of 60 days imposed on Lloyd E. Slayton on the 2nd day of February, 1945, by said Trial Justice; and it is now ordered that said Lloyd E. Slayton be remanded to jail to serve said term of 60 days.

"Having heard all the evidence with respect thereto, the Court is of the opinion that the said Lloyd Slayton has violated the law by driving while his permit was suspended and has committed perjury and subornation of perjury notwithstanding the verdict of the jury to the contrary."

This is one of the orders before us on the present writ of error. But the story does not end here.

On October 17 Epperson was tried on the indictment for perjury found against him, and was convicted by the verdict of a jury. No appeal was taken from this judgment of conviction, which has now become final. The record of that trial is also before us. It shows that the Commonwealth produced a disinterested witness, Dalton, who had not testified at the previous trials, and who clearly corroborated the evidence of the arresting officer, Barnes, that Slayton was driving the car at the time of his arrest on June 23. Except for this additional witness, the testimony was substan-tially the same as that adduced at the trials on July 20 and October 15.

On October 17, immediately after the conclusion of the Epperson trial, Slayton filed a written motion to set aside the judgment of the circuit court, entered on, October 15, which had affirmed the judgment of the trial justice revoking the suspension of Slayton's jail sentence. The purport of this motion was that since the only cause for revoking the suspension of sentence was the charge that he was driving the car on June 23, after his permit had been suspended, his acquittal by the jury of that charge precluded the circuit court from finding that he was in fact driving the car at that time, and from affirming the trial justice's judgment of revocation on that ground.

This motion the circuit court likewise overruled, entering an order in these words;

"Having heard all the evidence with respect thereto the Court is of the opinion that the said Slayton has violated the law by driving while his permit was suspended and has committed perjury notwithstanding the verdict of a jury to the contrary, but the Court is confirmed in its opinion by the verdict of another jury which convicted one Junior Epperson of perjury on the same state of facts on which the said Slayton was acquitted for driving while his permit was suspended."

On October 23 Slayton filed a further motion that the court reconsider and set aside its previous order wherein it had affirmed the trial justice's revocation of the suspended sentence. This motion was likewise overruled, the court stating in its order that it was convinced, after having heard the evidence which had been adduced before the jury in the charges against Slayton on July 20 and October 15, respectively, and that against Epperson on October 17, that Slayton was in fact driving the automobile on June 23, after his permit had been suspended, and for that reason the action of the trial justice in revoking the suspended sentence was entirely proper.

In order to complete the picture, we should say that on November 23 the separate indictments against Slayton, Carter, McDaniel, and Lanier, charging each with perjury, were tried together before a jury, and each defendant was convicted. A review of the proceedings in the latter...