Volume 177 — Virginia Reports

1. APPEAL AND ERROR — <italic>Evidence — Acceptance of Testimony in Favor of</italic> <italic>Party Prevailing in Trial Court.</italic> — Where a plaintiff has obtained a verdict and judgment, the Supreme Court of Appeals must accept testimony given in his behalf, unless such testimony is incredible. 2. APPEAL AND ERROR — <italic>Affirmance — Verdict of Jury — Conflicts in</italic> <italic>Evidence Determined by Verdict.</italic> — Where a jury returns a verdict in favor of the plaintiff it resolves all conflicts in evidence in favor of the plaintiff. 3. APPEAL AND ERROR — <italic>Evidence — Considered in Light Most Favorable</italic> <italic>to Party Prevailing in Trial Court.</italic> — When a litigant comes before the Supreme Court of Appeals with the favor of a verdict of the jury approved by the trial court he occupies the strongest position known to the law, and in such case the facts should be stated and accepted in the light most favorable to him. 4. AUTOMOBILES — <italic>Negligence — Pedestrians — Negligence of Third</italic> <italic>Party — Case at Bar.</italic> — In the instant case, an action to recover damages for wrongful death of plaintiff's intestate caused by the negligent operation of an automobile owned and driven by the defendant at the time of the accident, plaintiff's intestate alighted from an automobile near an intersection at night. The intersection was well lighted by street lights and at the time plaintiff's intestate entered the street there were no moving automobiles in sight. Plaintiff's intestate proceeded to the center of the street, a distance of twenty-one feet, at which point he stopped to permit an automobile to pass in front of him and while standing in or near the center of the street, he was struck by defendant's automobile which approached from the opposite direction. Defendant had approached driving his automobile close to the<page_number>Page 452</page_number> center line of the street with a clearance of at least twenty-one feet from the point where plaintiff's intestate was standing. After striking plaintiff's decedent, defendant told an investigating officer that he was talking to a girl companion and all at once plaintiff's intestate sprang from nowhere and that he had hit plaintiff's intestate before he saw him. Defendant contended that the sole proximate cause of the death of plaintiff's decedent was the negligence of the driver of the automobile which plaintiff's intestate stopped to let pass in front of him. <italic>Held:</italic> That there was no evidence to support defendant's contention. 5. AUTOMOBILES — <italic>Negligence — Pedestrians — Contributory Negligence</italic> <italic>a Jury Question.</italic> — The question as to whether a pedestrian, who is struck by an automobile or other motor vehicle, at or near a regular street crossing, or at a place customarily used as a crossing, exercised proper care, or has been guilty of contributory negligence which will defeat his recovery for injuries sustained by such collision, is almost invariably one for the jury. 6. AUTOMOBILES — <italic>Negligence — Pedestrians — Sufficiency of Evidence</italic> <italic>to Support Verdict — Case at Bar.</italic> — In the instant case, an action to recover damages for wrongful death of plaintiff's intestate caused by the negligent operation of an automobile owned and driven by the defendant at the time of the accident, plaintiff's intestate alighted from an automobile near an intersection at night. The intersection was well lighted by street lights and at the time plaintiff's intestate entered the street there were no moving automobiles in sight. Plaintiff's intestate proceeded to the center of the street, a distance of twenty-one feet, at which point he stopped to permit an automobile to pass in front of him and while standing in or near the center of the street, he was struck by defendant's automobile which approached from the opposite direction. Defendant had approached driving his automobile close to the center line of the street with a clearance of at least twenty-one feet from the point where plaintiff's intestate was standing. After striking plaintiff's intestate, defendant told an investigating officer that he was talking to a girl companion and all at once plaintiff's intestate sprang from nowhere and that he had hit plaintiff's intestate before he saw him. <italic>Held:</italic> That the evidence was sufficient to support a verdict in favor of plaintiff. 7. AUTOMOBILES — <italic>Negligence — Pedestrians — Duty to Ascertain</italic> <italic>Whether There Is Approaching Traffic.</italic> — When a pedestrian, in a city or town, steps from the sidewalk into the street at an intersection, the law imposes upon him the legal duty of ascertaining if any vehicular traffic is approaching from the left. If the way<page_number>Page 453</page_number> be clear, he has the right to proceed to the comparative zone of safety, which is the center of the street. Upon his arrival at the center of the street, he is under the legal duty of looking to his right for approaching vehicles. 8. AUTOMOBILES — <italic>Negligence — Pedestrians — Right of Way Cannot Be</italic> <italic>Asserted without Regard to Circumstances.</italic> — While section 2154(126), subsection b, of the Code of 1936, accords to pedestrians at intersections the right of way, a pedestrian would be guilty of contributory negligence which would bar recovery for injuries suffered, if he attempted to assert his right of way in the face of approaching traffic dangerously near him. 9. AUTOMOBILES — <italic>Negligence — Pedestrians — Determination of</italic> <italic>Conflicts in Evidence Is for Jury — Case at Bar.</italic> — In the instant case, an action to recover damages for wrongful death of plaintiff's intestate caused by the negligent operation of an automobile owned and driven by the defendant at the time of the accident, plaintiff's intestate alighted from an automobile near an intersection at night. The intersection was well lighted by street lights and at the time plaintiff's intestate entered the street there were no moving automobiles in sight. Plaintiff's intestate proceeded to the center of the street, a distance of twenty-one feet, at which point he stopped to permit an automobile to pass in front of him and while standing in or near the center of the street, he was struck by defendant's automobile, which approached from the opposite direction. Defendant had approached driving his automobile close to the center line of the street with a clearance of at least twenty-one feet from the point where plaintiff's intestate was standing. After striking plaintiff's intestate, defendant told an investigating officer that he was talking to a girl companion and all at once plaintiff's intestate sprang from nowhere and that he had hit plaintiff's intestate before he saw him. Defendant denied making any statement to the investigating officer. <italic>Held:</italic> That it was the province of the jury to determine the conflict in the evidence as to the statement to the officer, and the jury was warranted in drawing the inference that the defendant was engrossed in conversation with his young lady companion and was utterly oblivious of the predicament of the plaintiff's intestate. 10. WITNESSES — <italic>Impeachment — Prior Contradictory Statements — Record</italic> <italic>of Collateral Proceedings — Case at Bar.</italic> — In the instant case, an action to recover for the death of plaintiff's intestate who was struck and killed by an automobile owned and driven by defendant, it was assigned as error that the court erred in refusing to permit the police court record in the criminal case against the defendant, arising out of the same accident, to be introduced in evidence. Counsel in effect conceded that the introduction<page_number>Page 454</page_number> of the record was an effort upon the part of the defendant to impeach some of plaintiff's witnesses, and, by the record of a collateral proceeding, to corroborate his own statements. <italic>Held:</italic> No error. 11. WITNESSES — <italic>Impeachment — Prior Contradictory Statements —</italic> <italic>Admissible for Impeachment Only.</italic> — A witness, not a party, may be impeached by giving in evidence statements made by such witness, at a former trial or elsewhere, which are inconsistent with his testimony, the foundation of such impeachment having first been laid by calling the witness's attention to the claimed statement, and then questioning him about it. Such statements are impeaching statements only, and, where the witness is not a party, are not evidence to prove the fact to be as stated.

1. EXCEPTIONS, BILL OF — <italic>When Unnecessary — To Make Pleadings</italic> <italic>and Orders Part of Record.</italic> — No bill of exception is necessary to make the pleadings or orders of the trial court a part of the record on appeal. 2. EXCEPTIONS, BILL OF — <italic>Presentation to Judge — Failure to</italic> <italic>Present within Time — Circumstances Making Consideration of</italic> <italic>Motion to Dismiss Useless — Case at Bar.</italic> — In the instant case, a prosecution for robbery, on the first trial the jury was discharged by the court over the protest of accused, and on the second trial accused filed a plea of former jeopardy which stated the material facts. Three bills of exception, containing nothing except the pleas and orders, were presented to and signed by the trial judge. The attorney general moved to dismiss the writ of error on the ground that the bills of exception were not presented to the trial judge within the time required by law. <italic>Held:</italic> That it would be useless for the Supreme Court of Appeals to consider the motion of the attorney general, since, even if it were sustained, the material facts would be before the court, as they were stated in the plea of former jeopardy. 3. JURY — <italic>Discharge — No General Rule as to What Constitutes a</italic> <italic>Necessity.</italic> — What facts and circumstances shall be considered as constituting a necessity for the discharge of a jury by the court cannot be reduced to any general rule. 4. JURY — <italic>Discharge — Power Is Discretionary.</italic> — The power to discharge a jury is a discretionary power, which the court, as in all other cases of judicial discretion, must exercise soundly, according to the circumstances of the case. 5. JURY — <italic>Discharge — Proper When Fair and Just Verdict Cannot</italic> <italic>Be Obtained.</italic> — The object of the law is to obtain a fair and just verdict, and whenever it shall appear to the court that the jury impaneled cannot render such a verdict, it ought to be discharged, and another jury impaneled.<page_number>Page 922</page_number> 6. AUTREFOIS, ACQUIT AND CONVICT — <italic>What Constitutes Jeopardy —</italic> <italic>Unnecessary Nolle Prosequi without Consent of Accused.</italic> — After the jury has been sworn, if a <italic>nolle prosequi</italic> is entered and the indictment is dismissed without the consent of the accused, it amounts to an acquittal and bars further prosecution for the same crime unless there be manifest and urgent necessity for the entry of the <italic>nolle prosequi.</italic> 7. AUTREFOIS, ACQUIT AND CONVICT — <italic>What Constitutes Jeopardy —</italic> <italic>Discharge of Jury — Where Manifest Necessity Exists.</italic> — A trial court may, in the exercise of a sound discretion, discharge a jury without the consent of the accused when there exists a manifest necessity therefor or the ends of public justice so require, and such discharge will not support a plea of former jeopardy. 8. APPEAL AND ERROR — <italic>Presumptions on Appeal — Presumption in</italic> <italic>Favor of Regularity of Judgments.</italic> — All presumptions exist in favor of the regularity of the judgments of courts of general jurisdiction, and he who asserts the contrary is required to overcome the presumption by record proof. 9. JURY — <italic>Trial by Jury — Criminal Cases — Right of</italic> <italic>Commonwealth.</italic> — While the Commonwealth, by the constitutional mandate of section 88 of the Virginia Constitution, has no appeal (with certain exceptions) in a criminal case, this denial of appeal does not mean that the Commonwealth is not entitled to a trial by jury free from all bias, prejudice or improper influences, and to a verdict based on legal testimony. 10. VERDICT — <italic>General Consideration — Necessity for Rendition by</italic> <italic>Impartial Jury.</italic> — The administration of justice demands that verdicts, criminal as well as civil, shall be rendered by impartial juries and shall be the result of honest deliberation, free from prejudice or bias. 11. AUTREFOIS, ACQUIT AND CONVICT — <italic>Waiver — Right May Be Waived</italic> <italic>Expressly or Impliedly.</italic> — A person on trial for a capital or lesser offense may waive his right to plead former jeopardy, and such waiver may be expressed or implied. 12. AUTREFOIS, ACQUIT AND CONVICT — <italic>Provisions of Law — Guaranty</italic> <italic>of Immunity Not a Restraint on Accused.</italic> — The constitutional guaranty of immunity from double jeopardy is a restraint on the officers of the court, not on the accused. 13. AUTREFOIS, ACQUIT AND CONVICT — <italic>What Constitutes Jeopardy —</italic> <italic>Discharge of Jury — Introduction of Improper Evidence by</italic> <italic>Accused's Counsel — Case at Bar.</italic> — In the instant case, accused and a companion were jointly accused of robbery, and, after electing to be tried separately, his companion was acquitted. On the first trial of accused, the victim of the robbery was asked whether he had testified in the trial of the accused's companion, and<page_number>Page 923</page_number> upon answering affirmatively was then asked: "And in spite of your testimony, he was acquitted?" to which he again replied in the affirmative. Immediately thereafter the attorney for the Commonwealth moved to discharge the jury on the ground that the above testimony was highly prejudicial to the rights of the Commonwealth. This motion was sustained over the protest of accused. On the second trial, accused pleaded former jeopardy, to which plea a demurrer of the Commonwealth was sustained, and accused was found guilty. Accused contended that be was in jeopardy before the first jury within the meaning of section 8 of the Constitution. <italic>Held:</italic> That there was no merit in the contention of accused since his counsel had injected into the case evidence illegal and highly prejudicial to the Commonwealth which, as well as accused, was entitled to a verdict based on relevant evidence. It was not necessary to prove that the impertinent testimony actually influenced the minds of the jury. 14. EVIDENCE — <italic>Admissibility — Review — Trial Court in Better</italic> <italic>Position to Determine Effect of Illegal Evidence on Jury.</italic> — A trial court is in a much better position than an appellate court to determine whether the introduction of illegal testimony was reasonably calculated to prejudice the jury. 15. AUTREFOIS, ACQUIT AND CONVICT. — <italic>Appeal and Error —</italic> <italic>Insufficient Facts to Overcome Presumption of Correctness of</italic> <italic>Trial Court's Ruling — Case at Bar.</italic> — In the instant case, accused and a companion were jointly accused of robbery, and, after electing to be tried separately, the companion was acquitted. On the first trial of accused the victim of the alleged robbery was asked whether he had testified in the trial of accused's companion, and upon answering affirmatively was then asked: "And in spite of your testimony, he was acquitted?" to which he again replied in the affirmative. Immediately thereafter the attorney for the Commonwealth moved to discharge the jury on the ground that the above testimony was highly prejudicial to the rights of the Commonwealth. This motion was sustained over the protest of accused. On the second trial accused pleaded former jeopardy to which plea a demurrer of the Commonwealth was sustained, and accused was found guilty. Accused contended that he was in jeopardy before the first jury within the meaning of section 8 of the Constitution. <italic>Held:</italic> That the facts alleged in the plea of former jeopardy were not sufficient to overcome the presumption that the ruling of the trial court thereon was correct.<page_number>Page 924</page_number>