Zirkle v. Commonwealth

• Decision Date: 07 September 1949
• Docket Number: Record No. 3554.
• Court: Virginia Supreme Court
• Parties: J. ARNOLD ZIRKLE v. COMMONWEALTH OF VIRGINIA.

Page 862

189 Va. 862

J. ARNOLD ZIRKLE v. COMMONWEALTH OF VIRGINIA.

Record No. 3554.

Supreme Court of Virginia, Staunton.

September 7, 1949.

Present, All the Justices.

(1) Homicide — Manslaughter — Evidence Sufficient to Warrant Finding of Involuntary Manslaughter.

(2) Homicide — Manslaughter — Criminal Negligence Dominant Issue in Involuntary Manslaughter.

(3) Negligence — Evidence — Degree of Negligence to Be Proven in Criminal Proceeding.

(4) Evidence — Credibility — Testimony as to Automobile Accident Held Credible.

(5) Evidence — Questions of Law and Fact — Credibility of Witnesses for Jury.

(6) Criminal Law — Evidence — Right of Accused to Introduce Evidence of Good Character.

(7) Criminal Law — Evidence — Accused May Not Prove Good Character by Specific Acts.

(8) Criminal Law — Evidence — Scope of Cross-Examination of Character Witnesses.

(9) Criminal Law — Evidence — Proof of Prior Conviction to Rebut Evidence of Accused's Good Character Held Prejudicial.

(10) Criminal Law — Evidence — Basis of Rule Forbidding Proof of Prior Conviction.

(11) Criminal Law — Evidence — Basis of Rule Forbidding Proof of Specific Acts to Rebut Evidence of Good Character.

(12) Criminal Law — Evidence — Proof of Specific Acts Inadmissible to Rebut Evidence of Good Character.

(13) Homicide — Instructions — Instruction as to Bias of Witness in Trial for Manslaughter Properly Denied.

(14) Homicide — Instructions — Instruction Not Based on Evidence Properly Denied.

1. Accused was found guilty of involuntary manslaughter as a result of an automobile accident in which a guest in the car he was driving was killed. The collision occurred midway between the crest of a hill, from which accused had seen the other car some distance away, and the curve around which it was coming when he saw it. The driver of the other car testified that accused was driving in his proper lane when he came over the hill, but that after he passed the crest he swayed across the road and when 75 feet away was driving entirely in the wrong lane; that the witness cut his car to the opposite lane to avoid an accident, but that at the same time accused cut back into it and struck him. Accused testified that when he saw the witness' car rounding the curve it was being driven partly in the wrong lane, and that it continued so until the cars were 50 feet apart, when the driver instead of turning back into his own lane, cut across accused's lane and collided with him before he could successfully turn out of the way. While accused and the other driver were the only eye-witnesses, and their testimony was conflicting, that of the other driver supported the theory of the Commonwealth, and, when considered with other evidence, was sufficient to support the verdict.

2. Under the facts of headnote 1, there was testimony, denied by accused, to show that he had been drinking and was more or less under the influence of intoxicants. Accused contended 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 under the influence, but while the testimony as to his condition was material, it was not controlling. The dominant issue was not whether he was drunk or sober, but whether he was operating his automobile in the manner that the evidence tended to prove that he was, and the evidence, if believed, proved that he was guilty of negligence so gross and culpable as to indicate a careless disregard of human life and of the probable consequences of his act.

3. 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.

4. Under the facts of headnote 1, accused contended that the testimony of the other driver was incredible. The driver's statements as to the position of accused's car just before the impact were inconsistent with other statements made by him on the preliminary hearing, but there was nothing incredible in his testimony. Considered as a whole, it was not inconsistent with the physical facts at the scene of the collision as described by other witnesses.

5. The credibility of witnesses is a question exclusively for the jury, and where a number of witnesses testify directly opposite to each other, the jury is not bound to regard the weight of the evidence as equally balanced, they have the right to determine from the appearance of the witnesses on the stand, their manner of testifying, and their apparent candor and fairness, their apparent intelligence or lack of intelligence, and from all the other surrounding circumstances appearing on the trial, which witnesses are more worthy of credit, and to give credit accordingly.

6. A person on trial for a criminal offense has the right to introduce evidence of his good character, on the theory that it is improbable that a person who bears a good reputation would be likely to commit the crime charged against him. Evidence of this nature may be considered and weighed by the jury in determining his guilt or innocence, and, in a proper case, the punishment to be imposed. On the other hand, the Commonwealth is not permitted to introduce any testimony of the bad reputation of the accused until the accused has put the pertinent traits of his character in issue.

7. The accused, in order to establish good character, is not permitted to prove specific acts, custom or course of conduct, but is confined to proof of the opinion that the people of the community have of him. His specific acts, customs, conduct, etc., create this opinion and it is the sum total of all these things, that is, the consensus of opinion of the community in which he lives, that is considered pertinent and proper evidence to prove character. It follows that character, whether good or bad, must be proven either by hearsay testimony or negative testimony, the latter on the theory that his reputation is presumed to be good where "no slanderer has ever ventured to question it".

8. Both the accused and the Commonwealth are allowed wide latitude on cross-examination of character witnesses, the purpose of which is to ascertain whether the witness in fact knows the reputation of the accused, and to test the estimate or standard of the witness as to what constitutes good character. No hard or definite rule can be stated which is applicable to all cases; hence the matter, to a large extent, is left to the sound discretion of the trial judge.

9. Under the facts of headnote 1, witnesses for the accused testified that he bore a good reputation for truth, veracity and sobriety. The Commonwealth was improperly allowed to prove his former arrest and conviction of driving under the influence of intoxicants, on the ground that it was admissible to rebut the testimony as to his sobriety. His prior conviction was for a separate and distinct offense, wholly unconnected with that for which he was then on trial. It was not admissible as tending to establish his guilt or innocence, or for the purpose of impeaching his credibility, but the court gave no instruction limiting the jury to a consideration of the proof solely for the purpose of rebutting evidence of accused's good character, and the jury could, and very probably did, consider and weigh it in determining his guilt. The admission of this evidence was highly prejudicial.

10. The basis of the rule forbidding proof of a prior conviction on the trial of an accused charged with the commission of a subsequent offense, wholly unconnected with the prior offense, is, that a jury might give too much weight to such proof in determining the guilt or innocence of the accused. In fairness to a person charged with one offense, and to prevent the multiplicity of issues, he is not, and should not be, required to come into court prepared to meet other charges of which he has had no notice, and the Commonwealth is therefore usually confined to the introduction of evidence relevant to the charge stated in the indictment.

11. The rule prohibiting proof of specific acts of bad conduct, in rebuttal of testimony of good character, is supported by the same reasons forbidding proof of prior conviction of a crime wholly separate and independent of the offense for which the accused is then being tried.

12. Where the good character of the defendant is put in issue, the State in rebuttal may offer evidence as to his general bad character, but in so doing is held to the same restrictions as to bad character as the defendant in offering his good character, that is, the State cannot prove specific acts to show the defendant's bad character.

13. Under the facts of headnote 1, the trial court committed no error in refusing to give an instruction, requested by accused, which stated that the jury should consider and weight the testimony of the other driver with great care and caution because he was an interested party, and that, if accused was convicted, the witness would be forever free of a criminal prosecution. If a civil action had been pending against the other driver that fact was pertinent to show his possible interest or bias, but he was not an accomplice, and the principle involving the testimony of an accomplice, contended for by accused, should not be extended to cover cases of this class.

14. Under the facts of headnote 1, the trial court committed no error in refusing to give an instruction for accused which stated that the burden was on the Commonwealth to prove beyond all reasonable doubt that the other driver's car was not over on accused's side of the road, since both accused and the driver had testified that the automobiles collided to the east of the center of the highway. While the instruction was also argumentative and misleading, this incorrect statement of the evidence was sufficient for the court to refuse to give it.

Error to a judgment of the Circuit Court of Nelson county. Hon. ...