Winston v. Commonwealth
| Decision Date | 11 October 1948 |
| Docket Number | Record No. 3433. |
| Citation | 188 Va. 386 |
| Court | Virginia Supreme Court |
| Parties | FRANCIS ALLEN WINSTON v. COMMONWEALTH OF VIRGINIA. |
1. AUTOMOBILES — Driving While Intoxicated — Refusal of Arresting Officer and Jailer to Take Defendant to a Physician for Examination — Case at Bar. — In the instant case, a prosecution for driving under the influence of intoxicating liquor in violation of the Code of 1942, section 4722a (Michie), defendant contended that the refusal of the arresting officer and the jailer to comply with defendant's request to take him to a physician for an examination shortly after his arrest had the effect of depriving him of evidence which would have substantiated his claim that he was not intoxicated at the time of driving the car and deprived him of the rights guaranteed by Article I, section 8 of the Constitution of 1902. There was no evidence that the arresting officer or the jailer refused to allow the defendant, either personally or through his friend who came to the jail shortly after the defendant had been delivered there, to get in touch with a physician and arrange for a physical examination of the defendant.
Held: There was no merit in the contention of the defendant. There exists no statute or principle of law which places upon the arresting officers and custodians of persons accused of crime the duty to arrange for an examination of a person who has been arrested, or who is held in custody on a charge of drunkenness, and to produce him before a physician for this purpose. In this situation the duty of engaging the services of a physician to make such an examination, and of thus securing his testimony to establish defendant's sobriety, is on the defendant and not on the officers.
2. ARREST — Duty of Arresting Officer — Duty to Bring Person Arrested before Officer Authorized to Issue Criminal Warrants — Meaning of "Forthwith" as Used in Statute. — While section 4827a of the Code of 1942 (Michie) provides that an officer making an arrest "shall forthwith bring the person so arrested before an officer authorized to issue criminal warrants in the county or city where the arrest is made", this does not mean that he must forsake all other duties and do so immediately upon making the arrest. But this mandate of the statute must be performed with such reasonable promptness and dispatch as the circumstances may permit.
3. AUTOMOBILES — Driving While Intoxicated — Failure of Arresting Officer to Bring Defendant Promptly before a Judicial Officer Authorized to Issue Criminal Warrants — Case at Bar. — In the instant case, a prosecution for driving under the influence of intoxicating liquor in violation of the Code of 1942, section 4722a (Michie), defendant contended that he was deprived of his fundamental rights by failure of the arresting officer to bring him promptly before a judicial officer authorized to issue criminal warrants, as required by both section 4827a of the Code of 1942 (Michie) and where arrest is made pursuant to general authority for commission of a misdemeanor, and also by failure to afford defendant the opportunity of applying for his release on bail. The evidence showed that despite the defendant's protestations of innocence, the arresting officer delivered him to the jailer at 4:30 p.m., with the injunction that he be held there until nine o'clock p.m., at which later time he was to be brought before a judicial officer.
Held: That the arresting officer had not complied with the mandate of the statute to produce the defendant "forthwith" before a judicial officer and instead of performing his duty the arresting officer had usurped the functions of a judicial officer and, because he considered the defendant too drunk to be released, in effect committed him to jail for nearly five hours. The defendant was clearly entitled to a judicial opinion upon the question of his eligibility for bail as well as on the question of his sobriety.
4. AUTOMOBILES — Driving While Intoxicated — Failure of Arresting Officer to Bring Defendant Promptly before a Judicial Officer Authorized to Issue Criminal Warrants — Case at Bar. — In the instant case, a prosecution for driving under the influence of intoxicating liquor in violation of the Code of 1942, section 4722a (Michie), defendant contended that he was deprived of his fundamental rights by failure of the arresting officer to bring him promptly before a judicial officer authorized to issue criminal warrants, as required by both section 4827a of the Code of 1942 (Michie) and where arrest is made pursuant to general authority for commission of a misdemeanor, and also by failure to afford defendant the opportunity of applying for his release on bail. The evidence showed that despite the defendant's protestations of innocence, the arresting officer delivered him to the jailer at 4:30 p.m., with the injunction that he be held there until nine o'clock p.m., at which later time he was to be brought before a judicial officer. It was argued that the record did not show that the conduct of the arresting officer and jailer resulted in prejudice to defendant because, it was said, there was no evidence that a physical examination of defendant would have substantiated his claim of sobriety, or that he could have produced lay witnesses to testify to that effect. There was, however, conflict in the evidence as to whether defendant was intoxicated at the time he was operating the car on the highway.
Held: While it was true that the mere fact that an arresting officer fails to perform the statutory duty to bring the arrested person promptly before a judicial officer, to be dealt with according to law, or that the opportunity for applying for bail was improperly denied him, does not necessarily invalidate his subsequent conviction, the effect of the failure of the arresting officer and of the custodian of the arrested person to perform their respective duties was such as to deprive defendant of his constitutional right to call for evidence in his favor, and his subsequent conviction lacked the required due process of law and could not stand.
Error to a judgment of the Circuit Court of Charlotte county. Hon. Joel W. Flood, judge presiding.
The opinion states the case.
James W. Blanks and John Y. Hutcheson, for the plaintiff in error.
J. Lindsay Almond, Jr., Attorney General, and Ballard Baker, Special Assistant to the Attorney General, for the Commonwealth.
This writ of error brings under review a judgment entered upon the verdict of a jury convicting Francis Allen Winston, hereinafter called the defendant, of unlawfully driving or operating an automobile on a State highway while under the influence of intoxicating liquor, in violation of the Act of 1934, ch. 144, p. 220, as amended by the Act of 1940, ch. 87, p. 121 (Michie's Code of 1942, section 4722a). By its terms the violation of the statute is made a misdemeanor, punishable by a fine or imprisonment, or both, in the discretion of the court or jury.
It is conceded that the evidence adduced before the jury was sufficient to sustain a conviction, but the main contention is that the defendant was not convicted by due process of law, in that the conduct of the officer who made the arrest, and that of the deputy sheriff or jailer into whose custody the defendant was delivered, were such as to deprive him of his constitutional right to call for evidence in his favor.
On Sunday afternoon, October 5, 1947, E. T. Keister, an officer in the Department of State Police, while patrolling a portion of Highway No. 360, in Charlotte county, had his attention attracted to the reckless operation of a passing automobile. He overtook the vehicle and found that it was being driven by the defendant, Winston, who was accompanied by a single passenger, Clifton Granger.
According to the testimony of Keister, the patrolman, both Winston and Granger were "very drunk." Two bottles of whiskey were found in the car, one unopened and the other partly filled. Both men were placed under arrest, were required to get into the rear seat of the patrolman's car, and were driven to Charlotte Court House, about twenty-two miles away, where they were delivered to the deputy sheriff or jailer and locked up at 4:30 p.m.
Both at the time of his arrest and during the trip to the jail the defendant, Winston, protested to the arresting officer that he was not intoxicated, that he had not taken any intoxicant of any kind during the whole day, and asked to be taken to a physician in order that he might be examined and his true condition determined. This request was ignored by Keister, because, as he said, "I did not consider that my business."
Upon his arrival at the jail the defendant renewed his request both to the arresting officer and the jailer that he be taken to a physician for an examination to substantiate his claim that he was not intoxicated and had not drunk any intoxicating liquor. Again these requests were ignored. The defendant then insisted that he be taken before a proper official in order that he might be admitted to bail, stating that he had a sufficient amount of cash in his possession as security for the necessary bond. This request, too, was denied, as Keister, the arresting officer said, "because I considered him too drunk and told the jailer not to bail him until nine o'clock p.m." The jailer, too, concurred in this view, saying that the defendant "talked, acted and appeared to be drunk, and I considered him too drunk to be bailed."
Shortly after the arresting officer arrived at the jail with his two prisoners, Carlson Jones, an acquaintance of Winston, came up and joined in the request that the two men be granted the opportunity of applying for bail. This request was likewise denied, with the statement that the two men would be afforded the opportunity of applying for bail at nine o'clock p.m., in accordance...
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