Commonwealth v. Ellett

4 S.E.2d 762, 174 Va. 403, 1939 Va. LEXIS 160
CourtSupreme Court of Virginia
DecidedOctober 9, 1939
DocketRecord No. 2147
StatusPublished
Cited by62 cases

This text of 4 S.E.2d 762 (Commonwealth v. Ellett) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ellett, 4 S.E.2d 762, 174 Va. 403, 1939 Va. LEXIS 160 (Va. 1939).

Opinion

Spratley, J.,

delivered the opinion of the court.

On September 21, 1935, W. 0. Ellett was convicted, in the Police Court of the city of Richmond, of operating a motor vehicle upon the highways of this State while intoxicated. His penalty was fixed by the police justice at a fine of $100 and costs. The judgment of conviction, in addition, of itself operated to deprive him of the right to drive any such vehicle on the highways of this State for a period of one year from the date thereof. (Acts of Assembly 1934, chapter 144; Virginia Code 1936, section 4722.)

On May 8, 1936, within a year of the above conviction, and in the same court, Ellett was again convicted of a similar offense, committed after September 21, 1935. This conviction carried a penalty of one month in jail and a fine of $100 and costs. Although the penalty imposed was applicable to either a first or second offense, no reference was made to the prior conviction in the second warrant, or in the judgment of conviction thereon.

The Director of the Division of Motor Vehicles, hereinafter referred to as the Director, upon receiving a report of the first conviction, entered an order revoking, for a [407]*407period of one year from the date of that, judgment, the operator’s license previously issued to Ellett.

Upon receiving a report of the conviction of May 8, 1936, the Director, on the 25th day of May, 1936, entered another order again revoking the operator’s license issued to Ellett, depriving him of the right to drive within the State of Virginia for a period of three years from the date of the last conviction, May 8, 1936.

On December 17, 1938, less than three years after the last conviction, Ellett applied to the Director, in writing, for a new operator’s license. This application was denied by the Director on December 20, 1938, on the sole ground that two convictions of driving under the influence of intoxicants automatically revoked the offender’s permit or license for three years from the date of the last conviction, regardless of whether or not the offender had been charged with a second offense upon his trial for the latter offense.

On appeal to the Hustings Court of the city of Richmond, the Director’s decision was reversed, and he was ordered to issue a permit or license to Ellett. To that judgment a writ of error was awarded.

It is agreed by the Attorney-General for the Commonwealth and by counsel for Ellett that, since Ellett’s permit to drive was revoked under Code, section 4722, the extent of the revocation is to be determined under that section of the Code rather than under the provisions of the Virginia Operators’ and Chauffeurs-' License Act, Virginia Code 1936, chapter 90C, section 2154 (170) et seq.

Ellett contends that his last conviction was a conviction for a “first offense,” since the warrant did not allege the last offense to be a “second offense,” and conviction thereof deprived him merely of the right to secure a permit to operate a motor vehicle in Virginia for a period of one year from the date of conviction.

This presents for our consideration the sole question, whether the revocation of the permit is, under the statute, a part of the punishment for the crime charged.

[408]*408Ellett has had trial for each of the two offenses charged. The two judgments of conviction are final, and are now matters of record. Within the limits prescribed by law, the trial court fixed the measure of punishment for each offense. The penalty of being deprived of the right to operate a motor vehicle is not a part of, nor within the limits of the punishment to be fixed by a court or jury.

We are not here concerned with the question of trial procedure, or the quantum of evidence necessary to secure a conviction. We are not dealing with the degree of gravity of the accused’s guilt upon either conviction, but with the effect of the two separate and distinct convictions upon his rights as a citizen.

In construing Code, section 4722, we must give consideration to the words used, their relation to the subject matter in which they are used, the purposes for which the statute was intended, and the mischief sought to be suppressed. Miller v. Commonwealth, 172 Va. 639, 2 S. E. (2d) 343; Tobacco Growers Co-Operative Association v. Danville Warehouse Company, Inc., 144 Va. 456, 132 S. E. 482.

A brief review of the history and language of recent statutes relating to intoxicating liquors is illuminative and informative. In revising these statutes the General Assembly of Virginia, in 1924, provided an increased penalty for subsequent offenses committed in violation of the Prohibition Law. Virginia Code 1930, section 4675 (6). It was provided that if the prosecution was for a second offense, it should be so stated in the indictment returned, and the Commonwealth’s attorney was required to introduce evidence of the former conviction, in order to impose the increased penalty. Virginia Code 1930, section 4675 (43).

The same Act, subsection (25), made it unlawful to drive a vehicle while under the influence of intoxicants, and prescribed penalties to be fixed by the court or jury for the first and for second or subsequent offenses, that for the second and subsequent offense being more severe than for the first. In addition, it provided that a conviction of the [409]*409offense of driving while intoxicated should of itself operate to deprive the offender of the right to drive for one year. The loss of the right was not therein enlarged by reason of a conviction for second or subsequent offenses. The deprivation of the right was no part of the penalty provided for in the verdict of the jury or in the judgment of conviction. It was not necessary to be considered by the court or jury, or made a part of the judgment of conviction. The conviction “of itself” operated to deprive the offender of the right. The statute further required that a report of each conviction should be made to the Director of Motor Vehicles, to be kept as a record in his office.

Virginia Code 1930, section 4675 (6), providing a heavier penalty for an offense committed after the first conviction, refers to the later offense as a “subsequent offense.” Subsection (43) thereof, providing for the form of the indictment, refers to an offense committed after the first conviction as a “second offense.” Subsection (25), in the same Code, dealing with drunken driving, refers to a later offense as a “second or subsequent offense.”

We held, in construing the above subsections (6) and (43), that to make the accused subject to the infliction of the heavier penalty to be imposed by a court or jury for a “second offense,” it was necessary that a prior conviction be alleged in the indictment for the second offense. The object of the allegation was to put the accused on notice that proof of his prior conviction would be introduced, not for proving the offense, subsequent in point of time, but for the purpose of imposing a heavier punishment, if the later or following offense was proven. Keeney v. Commonwealth, (1927), 147 Va. 678, 684, 137 S. E. 478. This ruling permitted the accused to be informed of the charges against him, and allowed evidence to go before the jury showing the gravity of a repeated offense.

In Jennings v. Commonwealth (1931), 155 Va. 1075, 1082, 156 S. E. 394, it was held that it was mandatory for the prosecuting attorney to allege a prior conviction upon a trial for a second offense.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Matthew Douglas Pittman v. State
Court of Appeals of Georgia, 2023
Commonwealth v. Dickens
77 Va. Cir. 57 (Fairfax County Circuit Court, 2008)
Depsky v. Commonwealth
650 S.E.2d 867 (Court of Appeals of Virginia, 2007)
Washington v. Com.
634 S.E.2d 310 (Supreme Court of Virginia, 2006)
Washington v. Com.
616 S.E.2d 774 (Court of Appeals of Virginia, 2005)
Corbin v. Commonwealth
604 S.E.2d 111 (Court of Appeals of Virginia, 2004)
Washington v. Commonwealth
604 S.E.2d 92 (Court of Appeals of Virginia, 2004)
Vasquez v. Commonwealth
63 Va. Cir. 106 (Fairfax County Circuit Court, 2003)
Bednar v. Commonwealth
60 Va. Cir. 255 (Virginia Circuit Court, 2002)
Huff v. Department of Motor Vehicles
58 Va. Cir. 517 (Virginia Circuit Court, 2002)
Ingram v. Commonwealth
514 S.E.2d 792 (Court of Appeals of Virginia, 1999)
Walton v. Commonwealth
497 S.E.2d 869 (Supreme Court of Virginia, 1998)
Nicely v. Commonwealth
490 S.E.2d 281 (Court of Appeals of Virginia, 1997)
Walton v. Commonwealth
485 S.E.2d 641 (Court of Appeals of Virginia, 1997)
McBride v. Commonwealth
480 S.E.2d 126 (Court of Appeals of Virginia, 1997)
Actuarial Benefits, etc. v. VEC & Rosemary Lipcsey
Court of Appeals of Virginia, 1996
Griswold v. Commonwealth
472 S.E.2d 789 (Supreme Court of Virginia, 1996)
Commonwealth v. Bennett
38 Va. Cir. 312 (Fairfax County Circuit Court, 1996)
Tench v. Commonwealth
462 S.E.2d 922 (Court of Appeals of Virginia, 1995)
Commonwealth v. Washington
38 Va. Cir. 116 (Fairfax County Circuit Court, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
4 S.E.2d 762, 174 Va. 403, 1939 Va. LEXIS 160, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ellett-va-1939.