State v. Taft
| Decision Date | 04 March 1958 |
| Docket Number | No. 10908,10908 |
| Citation | 102 S.E.2d 152,143 W.Va. 365 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Burl H. TAFT. |
Syllabus by the Court
1. To constitute driving of an automobile, within the meaning of Section 2 of Article 5, Chapter 129 of the 1951 Acts of the Legislature, as amended, there must be an intentional movement of the automobile by the defendant.
2. In the trial of a criminal proceeding, it constitutes prejudicial error to refuse to give to the jury a requested instruction, in effect directing an acquittal as to a charge contained in a count of the indictment, where the evidence adduced is not sufficient to support a finding of guilt as to such charge.
M. G. Bufano, John D. Downes, Morgantown, for plaintiff in error.
W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.
Defendant, Burl H. Taft, was indicted by a grand jury of the Circuit Court of Monogalia County, at the January, 1957, Term. The violations alleged arise from the occurrence described in State v. Taft, No. 10907, W.Va., 102 S.E.2d 149. The facts need not be repeated here. The indictment in the instant case is in two counts. The first count charges defendant with having driven an automobile while 'under the influence of intoxicating liquor'. The second count alleges that defendant unlawfully drove an automobile while 'under the influence of drugs and narcotics to a degree which rendered him incapable of safely driving a motor vehicle'. The trial was commenced on February 12, 1957. On the verdict of the jury, the judgment was that defendant serve six months in the county jail, the sentence to run consecutively to the sentence mentioned in case No. 10907.
Some of the jurors who served on the jury which convicted defendant in the instant case were present in the court room at the time of the impaneling of the jury to try the case above mentioned, and heard some of the evidence offered by the State on that trial. Defendant moved for a continuance and, the motion having been denied, moved for the discharge of a juror. We find no prejudicial error in the action of the court in overruling the motions. The matters were within the discretion of the trial court. We see no abuse of that discretion. See State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442; State v. Gargiliana, 138 W.Va. 376, 76 S.E.2d 265; State v. Toney, 98 W.Va. 236, 127 S.E. 35.
After the jury had considered of a verdict for some time, the foreman requested the trial court to answer the question, 'Is there a legal definition for what constitutes driving a car?' Whereupon, over objection of defendant, the court instructed the jury 'that the term 'driving' has been defined and construed as requiring that a vehicle be in motion in order for the offense to be committed'. Defendant then offered, in writing, an instruction which would have told the jury 'that if they believe from the evidence that defendant got in his parked car for the purpose of waiting for someone else, and that the brakes of his car accidentally released and the car drifted some two to three feet into the rear end of a car parked in front of said Taft car, and that the movement of said car was accidental, and not the act and intent of the defendant, then you are authorized to find and determine that the defendant was not then and there driving his said car, and if you so find that the defendant was not then and there driving his said car, you may find the defendant not guilty.'
The statute on which the indictment is based, Section 2 of Article 5, Chapter 129 of the 1951 Acts of the Legislature, as amended, Michie's 1955 Code, 17C-5-2, makes it a criminal offense for a person 'to drive any vehicle on any highway of this state' while 'under the influence of intoxicating liquor'; or 'under the influence of any narcotic drug'. The question posed by the action of the court, as related to the instructions mentioned above, is whether the mere motion of the vehicle constituted 'driving' of the vehicle, within the meaning of the statute. We think that it does not.
Though movement of a vehicle is an essential element of the statutory requirement, the mere movement of a vehicle does not necessarily, in every circumstance, constitute a 'driving' of the vehicle. To 'drive' a vehicle necessarily implies a driver or operator and an affirmative or positive action on the part of the driver. A mere movement of the vehicle might occur without any affirmative act by a driver, or, in fact by any person. If a vehicle is moved by some power beyond the control of the driver, or by...
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Mercer v. Department of Motor Vehicles
...that term as requiring evidence of volitional movement. (Graves, supra, 237 S.E.2d 584, 586-588 [discussed ante ]; State v. Taft, supra, 102 S.E.2d 152, 154 [volitional "movement of a vehicle is an essential element of the statutory requirement"].) North Carolina, relying on related state s......
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...C. Gavit ed., 1941); State v. Richards, 426 So.2d 1314 (La.1982); Moffett v. State, 96 Nev. 822, 618 P.2d 1223 (1980); State v. Taft, 143 W.Va. 365, 102 S.E.2d 152 (1958); State v. Quick, 199 S.C. 256, 19 S.E.2d 101 (1942); State v. Rider, 90 Mo. 54, 1 S.W. 825 (1886). When, as in the insta......
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State v. Legg
...should distinguish between the charges so that the defendant knows the charge upon which he was convicted. E.g., State v. Taft, 143 W.Va. 365, 366, 102 S.E.2d 152, 154 (1958); State v. Gargiliana, 138 W.Va. 376, 386, 76 S.E.2d 265, 270 However, we do not agree with Mr. Legg's contention in ......