Wade v. Com.

• Citation: 202 Va. 117,116 S.E.2d 99
• Parties: Wallace Parker WADE v. COMMONWEALTH of Virginia.
• Decision Date: 02 September 1960
• Court: Supreme Court of Virginia

Page 99

116 S.E.2d 99

202 Va. 117

Wallace Parker WADE v. COMMONWEALTH of Virginia.

Supreme Court of Appeals of Virginia.

Sept. 2, 1960.

Wayt B. Timberlake, Jr., Staunton, Humes J. Franklin, Waynesboro, for plaintiff in error.

Reno S. Harp, III, Asst. Atty. Gen. (A.S. Harrison, Jr., Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, MILLER, WHITTLE, SNEAD and I'ANSON, JJ.

SNEAD, Justice.

On September 25, 1958, Wallace Parker Wade, appellant, was found guilty of involuntary manslaughter as a result of an automobile accident in which Fred Melvin Dickerson received fatal injuries. The jury fixed his punishment at confinement in the penitentiary for a period of two years. The court, by its order of June 3, 1959, overruled defendant's motion to set the verdict aside and sentenced him to confinement in the penitentiary for a term of three years. The imposition of a three year sentence instead of the two year sentence in accordance with the verdict was a clerical error, and is of no importance in view of the decision in this appeal.

Defendant has resolved his assignments of error into the following questions for our consideration: Whether the trial court erred in (1) ruling that §§ 18-75.1, 18-75.2 and 18-75.3, Code 1950, as amended, apply to this felony prosecution; (2) in permitting E.W. Dickerson to testify with regard to the family of the deceased; (3) in refusing defendant's Instructions D and E; (4) in denying defendant's motion for a mistrial; (5) in ruling there was sufficient evidence to support a conviction.

The accident occurred about 11:20 p.m. on April 20, 1957, in Fishersville on Route 250, which runs east and west, and is a three-lane, hard-surfaced roadway at the point of collision. Elwood H. Furr was operating a Trailway bus westwardly in the right-hand lane and gave a signal "to make a smooth stop in plenty of time" in order to discharge passengers. There was no east-bound traffic at the time. Furr said that he observed a car approaching from the rear about a city block distant and before he had come to a complete stop the car struck the rear of the bus "at a glancing blow". The hood "flew off the car and went on up the highway" in front of the bus. The right front door fell off on the highway about midway of the left side of the bus as the car passed. The automobile laid down 80 feet of skid marks which led up to debris on the road caused by the impact. It then continued on the left or south side of the highway for a distance of about 149 feet and ran into the "Glenn" house. The bus stopped in a distance of about one-half of its length. The car was practically demolished and the bus was damaged on the left rear. In the front seat of the automobile, which was a 1950 Buick four-door sedan owned by Wade, were Dickerson and Wade who were returning from a fishing trip. Wade received multiple fractures of the lower jaw, lacerations of the right cheek and in the hairline of the scalp, fractured ribs, leg injuries and several bruises around both hips. Dickerson died of injuries he sustained shortly after his arrival at the hospital.

The testimony is conflicting as to who was operating the automobile. Wade testified that he was not driving the vehicle; that he was asleep in the right-hand side of the car at the time of the collision, and that he remembered nothing that occurred from that time until about a week later in the hospital. Several witnesses stated that Dickerson was driving when he and Wade left The Willows and the Wayne-Way Restaurant, which establishments are located a short distance from the scene of the accident. Furr, the bus driver, said Wade's "body was more or less just straight back of the steering wheel" and was slumped "more to the left of the steering wheel." He further testified that Dickerson was lying on the seat with his head at the right door and his feet on the floor. Shirley Ann Clemmer, a registered nurse who resided nearby and heard the crash, stated that when she arrived at the scene Wade was sitting up on the right side of the steering wheel leaning against it, and that Dickerson was on the right side of the vehicle with half of the trunk of his body hanging outside and his head resting in a gentleman's hands. Other witnesses placed the occupants of the car in various positions. Trooper H.H. Collier, who had a conversation with Wade at the hospital about an hour after the accident, stated that when asked who was driving the car, Wade pointed to himself. Mrs. Clemmer, who was among those present, corroborated this statement. Shortly thereafter Collier returned to Wade's room and repeated the question to Wade and he replied "I was." Collier, Mrs. Clemmerand Dr. Harvey B. Ryder testified Wade appeared to be rational and conscious when Collier talked with him.

The testimony is also conflicting as to whether Wade consented to the taking of a blood test, but there is credible evidence to show that he gave such consent. His blood was analyzed in the office of the Chief Medical Examiner of the State Department of Health and was found to contain 0.15% alcohol. Over the objection of defendant, the attorney for the Commonwealth was permitted to comment on the blood test in his opening statement to the jury and to introduce into evidence the Chief Medical Examiner's certificate showing the results of the analysis. This action by the court constitutes the critical question in the case.

Section 18-75, Code 1950, and the amendatory sections 18-75.1, 18-75.2 and 18-75.3 ^* pertinent to the issue are printed in the margin.

Defendant contends that the certificate referred to in § 18-75.1 could be introduced only in a prosecution under § 18-75 or a similar ordinance of any county, city or town. The Commonwealth takes the position that the certificate was properly admitted to show the percentage of alcohol Wade's blood contained, because § 18-75.2 provides that it "shall * * * be admissible in any court or proceeding as evidence of the facts therein stated and the results of the analysis of the blood of the accused."

We had occasion to discuss §§ 18-75.1, 18-75.2 and 18-75.3 in the recent case of Russell v. Hammond, 200 Va. 600, 106 S.E.2d 626, 629, where we held, among other things, that the certificate of the Chief Medical Examiner executed under § 18-75.1 is not admissible under § 18-75.2 in a civil case. We pointed out that the three statutes "must be read together since they are related and the last two refer to the blood alcohol test made under § 18-75.1." At page 603 of the opinion in 200 Va., at page 629 of 106 S.E.2d we said:

"Section 18-75.1 is specifically made applicable to 'criminal prosecutions under § 18-75, (driving automobile, etc., while intoxicated) or similar ordinance of a county, city, or town,' * * *.

"The words 'in any court or proceeding,' [§ 18-75.2 when read in conjunction with the companion §§ 18-75.1 and 18-75.3, clearly refer to 'any court or proceeding' dealing with 'any criminal prosecution under § 18-75, or similar ordinance of any county, city or town * * *' such as is referred to in § 18-75.1.

* * *

* * *

"Section 18-75.3 provides for certain presumptions arising out of the analysis made, pursuant to § 18-75.1, of the alcoholic content in the blood of an accused in a criminal prosecution under § 18-75."

It is a cardinal principle of law that penal statutes are to be construed strictly against the State and in favor of the liberty of a person. Such a statute cannot be extended by implication, or be made to include cases which are not within the letter and spirit of the statute. Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838. Sections 18-75.1, 18-75.2 and 18-75.3 refer to § 18-75 (driving automobile, etc., while intoxicated) or similar ordinance of any county, city or town. Wade was not prosecuted for operating an automobile under the influence of intoxicants, and we cannot extend the provisions of the statutes in question to include prosecutions for involuntary manslaughter or other criminal offenses. We, therefore, hold that the admissibility of the Chief Medical Examiner's certificate is limited to prosecutions under § 18-75 or similar ordinance of any county, city or town.

In view of this finding, it was error to give instruction No. 6 tendered by the Commonwealth, since it related to the blood test and was based upon the presumption in § 18-75.3.

During the course of the trial the Commonwealth called as a witness Emmett W. Dickerson, uncle of Fred M. Dickerson, the deceased. Over the objection of defendant, he was permitted to testify that Dickerson's family consisted of his wife, a daughter 11 years of age and a son age 7. The grounds for defendant's objection were that such testimony was not material or relevant to the issues involved and that the question could have no other purpose and object than to inflame the jury against Wade. We agree that this evidence was immaterial and irrelevant to the issues involved and, therefore, it was improper to admit it. Upon a retrial of the case, evidence of such character should not be admitted. See Boggs v. Commonwealth, 199 Va. 478, 486, 100 S.E.2d 766.

It is also the contention of defendant that the court erred in refusing his Instructions D and E. Instruction D defines criminal negligence in the identical phraseology as was set forth in an instruction given in Bell v. Commonwealth, 170 Va. 597, 615, 195 S.E. 675.

The form of Instruction E was not questioned and it reads:

"The Court instructs the jury that if, after hearing all the evidence in this case, they have a reasonable doubt as to whether Wallace Wade or Fred Dickerson was driving the Wade automobile at the time of the accident in which Fred Dickerson lost his life, they shall find a verdict of not guilty in this case."

The Commonwealth argues that both refused instructions were adequately covered in Instructions 2, 2A and 3 granted the Commonwealth and to have given them...