State v. Michael

• Decision Date: 31 May 1955
• Docket Number: No. 10705,10705
• Citation: 87 S.E.2d 595,141 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, v. William Lyle MICHAEL.

Page 595

87 S.E.2d 595

141 W.Va. 1

STATE of West Virginia, v. William Lyle MICHAEL.

No. 10705.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1955.

Decided May 31, 1955.

Syllabus by the Court.

1. In a criminal prosecution, an indictment which charges that the defendant '* * * did unlawfully drive and operate a motor vehicle upon the public roads and streets of Berkeley County, West Virginia, while intoxicated and under the influence of intoxicating liquors, against the peace and dignity of the State', sufficiently charges an offense within the meaning of Section 2, Article 5, Chapter 129, Acts of the Legislature, Regular Session, 1951.

2. Where a constitutional question, not involving the jurisdiction of the trial court or this Court, was not raised specifically in the trial court or in this Court, and the decision of the question is not necessary to the decision of the case, this Court will not ex mero motu consider the question.

3. 'The competence of a witness to give material testimony may not be challenged for the first time in this Court, but must be raised and passed upon in the trial court before it can be made the basis of an assignment of error here. * * *.' Pt. 3, Syl., Millhide v. Biggs, 118 W.Va. 160, 188 S.E. 876.

4. Error in the admission of testimony to which no objection was made will not be considered by this Court on appeal or writ of error, but will be treated as waived.

5. In a criminal prosecution the State has the burden of establishing defendant's guilt beyond a reasonable doubt, and where the State has failed to carry such burden of proof, and nevertheless the defendant has been found guilty, this Court will reverse the judgment of conviction and set aside the verdict of the jury.

6. In a criminal case in which a judgment of conviction does not depend upon circumstantial evidence, in whole, or in part, it is not error for a trial court to refuse an instruction offered by the defendant which contains an admonition to the jury that 'And this degree of conviction only exists when the facts proved coincide with, and are legally sufficient to establish, the truth of the hypothesis assumed, namely, the guilt of the party accused, and are not inconsistent with any other hypotheses.'

7. 'In a case in which the evidence is largely direct, positive and oral, prayers for instructions telling the jury they must acquit the prisoner, if there is any reasonable hypothesis consistent with his innocence, are properly denied, the rule being applicable only to issues dependent upon circumstantial evidence.' Pt. 6, Styl., State v. Wilson, 74 W.Va. 772, 83 S.E. 44.

8. In a criminal case it is not error for the trial court to give an instruction offered by the State which told the jury that it was not necessary to prove that the defendant was intoxicated, but only necessary to prove that he was under the influence of intoxicating liquor. The words 'intoxicated' and 'under the influence of intoxicating liquor' are, in contemplation of law, synonymous.

Gray Silver, Martinsburg, Archibald McDougall, Martinsburg, for plaintiff in error.

John G. Fox, Atty. Gen., Harold A. Bangert, J., Asst. Atty. Gen., for defendant in error.

RILEY, Judge.

In this criminal proceeding of State of West Virginia against William Lyle Michael, the defendant at the February, 1954, term of the Circuit Court of Berkeley County was indicted on the charge that 'on the ___ day of January, 1954, and within twelve months prior to the finding of this indictment, in the said County of Berkeley, did unlawfully drive and operate a motor vehicle upon the public roads and streets of Berkeley County, West Virginia, while intoxicated and under the influence of intoxicating liquors, against the peace and dignity of the State.' Upon the verdict of the jury, the defendant having made motions in arrest of judgment, and to set aside the verdict and grant a new trial, the Circuit Court of Berkeley County on April 1, 1954, overruled the motions, to which action of the court the defendant excepted. Thereupon the circuit court ordered that the defendant be confined in the county jail of Berkeley County for a period of sixty days, and that the State do recover of and from him a fine of fifty dollars and costs.

On Saturday evening, January 2, 1954, the defendant, William Lyle Michael, accompanied by his wife, Estelle Louise Michael, left their home, located about three miles from Martinsburg, West Virginia, in defendant's pick-up truck, and drove with defendant at the wheel to Martinsburg. Arriving at Martinsburg, they attended a moving picture show, did some 'window shopping', and then visited the club rooms of the Martinsburg Veterans of Foreign Wars, where defendant, while playing cards in the barroom of the club, drank four bottles of beer, defendant's wife remaining in a room outside the barroom in the company of friends.

About midnight defendant and his wife went to Carl's Restaurant in Martinsburg, where they had something to eat. The Michaels left the restaurant about two o'clock in the morning of January 3, 1954, and, with defendant driving, drove in a westerly direction from Martinsburg along State Route No. 9, known as the Hedgesville road, to meet friends, who were supposed to visit them at their home that morning. On the way, about two and a half miles out of Martinsburg, the pick-up truck which Michael was driving became involved in a serious accident, which resulted in injuries to both Michael and his wife. According to defendant, he was driving his truck at a speed of forty miles an hour, at a point in the road where the speed limit was fifty-five miles an hour. On topping a small hill around a curve in the road at a 'no passing zone', indicated by a double white line, he noticed from the headlights thereon that an automobile was attempting to pass the truck from the rear. Defendant then noticed another car coming toward him, which car was a 1951 Chevrolet, owned by State's witness, Obert Orr, who likewise was injured, the car at the time being driven by Sarah Jane Orr, Obert Orr's wife. The Orr automobile collided with the pick-up truck of defendant, and as a result of the collision the Michaels and Obert Orr were injured. After attending to her husband, Mrs. Orr observed defendant lying behind the Orr car with his head on the hard surface of the road, his body on the grass, and his face down on the road. This witness also noticed that defendant's head was bleeding and that Mrs. Michael was standing in the middle of the road near the white line, with her handbag in her hand and one shoe on the road near where she was standing.

Before any member of the department of public safety reached the scene of the collision, an ambulance had arrived, which took defendant and the Orrs to Kings Daughters Hospital in Martinsburg, with Obert Orr lying in the back of the ambulance, Mrs. Orr sitting nearby, and Michael lying in the middle compartment of the ambulance.

Shortly before the arrival of the ambulance, Mrs. Michael had been taken to the hospital by defendant's witness, Wayne Files, who while driving along the Hedgesville road, reached the scene of the collision shortly after it occurred. At the hospital this witness had a nurse call an ambulance. Files testified that 'She [Mrs. Michael] was bleeding and had blood all over her face.'

Fourteen separate grounds of error are relied upon for reversal of the sentence of conviction, which grounds of error raise five primary questions: (1) Did the trial court err in refusing to sustain defendant's motion to dismiss the indictment, in refusing defendant's motion to strike out the evidence and direct a verdict for the defendant, on the ground that no crime known to the law of the State of West Virginia was charged in the indictment; (2) did the trial court err in overruling defendant's admission of evidence regarding a blood sample 'and thereby refusing to determine the preliminary question of the admissibility (relevance) or the inadmissibility (irrelevance) of the evidence, which depended upon whether the sample could be proved to be a sample of the defendant's blood'; (3) did the trial court err in admitting and allowing to go to the jury, over the objection and exception of the defendant, evidence offered by the State regarding a blood sample and its analysis, which defendant states was not shown to be a sample of defendant's blood; (4) did the trial court err in eliciting in the presence of the jury evidence of a witness as to the alcoholic content of the blood of persons 'known' by the witness to be intoxicated; and (5) did the trial court err in allowing the case to go to the jury in the absence of evidence upon which the jury could properly find that defendant was intoxicated or under the influence of intoxicating liquor.

The other assignments of error are based upon the alleged error of the trial court in refusing to give defendant's instruction No. 8, defining the word 'intoxicated' and failing to give any other proper instruction to the jury as to the meaning of either the word 'intoxicated' or the phrase 'under the influence of intoxicating liquor', after overruling defendant's motion to dismiss the indictment and after admitting evidence to show intoxication, and using the word 'intoxicated' repeatedly in the court's examination of the laboratory technician, Mark B. Jacobs; in refusing to give defendant instruction No. 7, as offered, and in modifying it by striking out the words 'intoxicated' and 'while intoxicated', which the defendant asserts followed the description of the offense as charged in the indictment; in refusing defendant's instruction No. 12, which instructed the jury on the difference in the degree of proof required by law in civil and criminal cases, and on the principle that mere suspicion is not enough to justify conviction, an instruction which defendant asserts was peculiarly necessary in the circumstances of this case to avoid...