Zirkle v. Commonwealth

• Citation: 189 Va. 862, 55 S.E.2d 24
• Case Date: September 07, 1949
• Court: Supreme Court of Virginia

55 S.E.2d 24
189 Va. 862

ZIRKLE.
v.
COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 7, 1949.

J. Arnold Zirkle was convicted of Involuntary manslaughter in operation of an automobile in Circuit Court of Nelson County, Edward Meeks, J., and he brings error.

The Supreme Court of Appeals, Hudgins, C. J., reversed the judgment, holding that a case was made for the jury and that rulings on instructions were without error but that admission of evidence of prior conviction of defendant to rebut testimony of defendant's good reputation for sobriety, was prejudicial error.

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Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

William Kinckle Allen, William M. McClenny, Amherst, for plaintiff in error.

Attorney General J. Lindsay Almond, Jr., Assistant Attorney General Ballard Baker, for Commonwealth.

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HUDGINS, Chief Justice.

J. Arnold Zirkle, by this writ of error, seeks to have reversed a judgment entered on the verdict of the jury finding him guilty of involuntary manslaughter and imposing a fine of $1,000 for the unlawful and felonious killing of Charlie Coffey.

On February 25, 1948, Zirkle, hereinafter designated as the accused, with Charlie Coffey riding on the front seat as his guest, left Lynchburg driving his brother's 1941 Ford automobile north en route to his home in Nelson county. As he reached the crest of a hill between Amherst and Lovingston, on Route 158, an automobile driven by Charlie Bowling was rounding a curve approximately 1, 000 feet away, approaching from the opposite direction. The two automobiles collided approximately midway between the crest of the hill and the curve. Charlie Coffey died as a result of injuries received in the collision.

Only three of the six assignments of error stated in the petition are based on proper exceptions taken to the different rulings of the trial court. These are (1) that the verdict was contrary to the law and the evidence; (2) the admission of improper evidence, and (3) the refusal of the court to grant defendant's Instructions F and J.

At the scene of the accident the hard-surfaced portion of the highway was 20 feet wide, and there was a dirt shoulder on the west four feet wide and on the east eight feet wide. Down the center of the highway were two unbroken white lines four inches apart. The time was approximately 6:15 p. m., between sunset and dark. Parking lights or dimmers were burning on both cars. There was no obstruction to the view of the drivers as they approached each other traveling 35 to 40 miles per hour.

The operators of the two vehicles were the only eye-witnesses to the accident. Their testimony is conflicting. Bowling's testimony supports the theory of the Commonwealth, and, when considered with other evidence, is sufficient to support the verdict. If the jury had believed the testimony of the accused and the corroborating testimony of his witnesses, it would have been compelled to return a verdict of not guilty.

Stating the evidence from the point of view of the Commonwealth, it appears that, as the accused came over the crest of the hill, he was driving on the east, or his side of the highway, but after he passed the crest his car zigzagged, or swayed, across the center of the road. When the cars were approximately 75 feet apart, the accused was driving on the west, or his wrong side of the road, with his automobile entirely in the south-bound traffic lane. Bowling, a witness for the Commonwealth, said: "this scared me and at the time I did not see no other chance to save my life but to cut to my left." This he says he did. At approximately the same time the accused turned his car sharply to his right (east), and struck the Bowling car just after its left front wheel had crossed the center line into the north-bound traffic lane.

The Bowling automobile came to rest on the east side of the highway with its two left wheels off the hard surface. The left front wheel was on the shoulder about two feet and the left rear wheel on the shoulder about a foot farther--that is, the automobile stopped not quite parallel with the highway. The automobile operated by the accused stopped at right angles to, or crosswise of the highway, with its rear bumper against the bank on the west side and the front within two feet of the white lines or center of the highway.

Accused testified that as he came over the crest of the hill he saw the Bowling automobile rounding the curve approximately 1, 000 feet away, with his automobile approximately 18 inches to his left of the center of the road in the north-bound traffic lane; Bowling continued to drive his car in this position on the highway until the cars were within 50 feet of each other, when Bowling, instead of turning to his right in the south-bound traffic lane, "cut right short across in front of me. * * * when he did that, when he cut short to the right I aimed to cut mine back to the left but we were so close together I am satisfied I didn't get anywhere from where I cut them. I am

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satisfied I never got as far as the center of the road when we hit."

There was testimony tending to show that the accused had been drinking and was more or less under the influence of intoxicants. This he denied and introduced several witnesses who corroborated him in this particular.

The accused contends that the evidence for the Commonwealth was insufficient to prove that he was guilty of criminal negligence, unless it was proven beyond a reasonable doubt that he was driving under the influence of intoxicants.

We do not agree with this contention. As we view the evidence, the dominant issue is not whether the accused was drunk or sober, but whether he was operating his automobile in the manner that the evidence for the Commonwealth tended to prove that he was. The testimony as to whether he was under the influence of intoxicants was material, but not controlling.

We have held in numerous cases that the negligence required to be proven in a criminal proceeding must be more than the lack of ordinary care and caution. It must be something more than mere inadvertence or misadventure. As Mr. Justice Spratley said in Bell v. Commonwealth, 170 Va. 597, 611, 195 S.E. 675, 681, "It (criminal negligence) is a recklessness or indifference incompatible with a proper regard for human life. It must be shown that a homicide was not improbable under all of the facts existing at the time, and that the knowledge of such facts should have had an influence on the conduct of the offender. 99 A.L.R. 829; 5 Am.Jur. 927; Cain v. State, 55 Ga.App. 376, 190 S.E. 371."

Mr. Chief Justice Prentis, in Goodman v. Commonwealth, 153 Va. 943, 151 S.E. 168, 171, dealing with a similar situation, said: "The precise grade of such a homicide, whether murder or manslaughter, depends upon the facts of the particular case. One, however, who accidently kills another, even though he may be chargeable with some actionable negligence, is not guilty of a crime, unless his negligence is so gross and culpable as to indicate a callous disregard of human life and of the probable consequences of his act. The crime is imputed because of recklessness, and, where there is no recklessness, there is no crime."

The statute, section 2154(108) (a), Michie's Code 1942, provides: "Irrespective of the maximum speeds herein provided, any person who drives a vehicle upon a highway recklessly, or at a speed or in a manner so as to endanger life, limb or property of any person shall be guilty of reckless driving; provided that the driving of a motor vehicle in violation of any speed limit provision of section 2154(109) shall not of itself constitute ground for prosecution for reckless driving under this section."

The testimony of the Commonwealth was to the effect that the accused operated his vehicle in such manner that it zigzagged across the center of the highway; that as it neared the scene of the accident it was being driven entirely on the wrong side of the road in the southbound traffic lane in plain view of the automobile approaching from the opposite direction, and that the accused failed to turn into the north-bound traffic lane until too late to avoid a head-on collision. This evidence, if believed, proved that the accused was guilty of more than inadvertence or ordinary negligence. It was sufficient to convict him of negligence so gross and culpable as to indicate a careless disregard of human life and of the probable consequences of his act. See Salyer v. Commonwealth, 165 Va. 744, 181 S.E. 435.

The accused further contends that the testimony of Charlie Bowling is incredible. We find nothing incredible in it. When considered as a whole, it is not inconsistent with the physical facts at the scene of the collision as described by other witnesses. It is true that two of his statements as to the position of the car of the accused just before the impact were inconsistent and somewhat contradictory of two other statements made by him on the preliminary hearing of the criminal charge.

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The accused was likewise contradicted in at least one...