Parker v. Commonwealth , 135 Va. 625 ( 1923 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

In the view we take of the case only two questions raised by the assignments of error need be considered. They will be disposed of in their order as stated below.

1. Did the court err in refusing to give the following instruction offered by the accused?

“The court instructs the jury that as it appears to the court from the evidence that there has been no intentional violation of any provision of the prohibition -act, but an unintentional or inadvertent violation ■thereof, they cannot impose a jail sentence upon the ■defendant.”

The question must be answered in the negative.

The language of the statute on this subject is contained in section 5 of chapter 388 of the Acts of 1918 {Acts 1918, at page 579) and is as follows:

“ * * where, upon the trial of any charge of a ■violation of this act, it shall appear to the court trying the case that there has been no intentional violation of any provision thereof, but an unintentional or inadvertent violation thereof, then such court shall instruct the jury that they cannot impose a jail sentence.”

One- defect in the instruction as offered is that it is mot sufficiently guarded in expression so as not to express the opinion of the trial judge upon the guilt or innocence of the accused. It is open to the saíne objection as was the instruction condemned by this court in Price’s Case, 132 Va. 582, 110 S. E. 349. To avoid such objection such an instruction, when given, should be substantially in the following form, namely: “Upon the subject of the guilt or innocence of th'e defendant, the court expresses no opinion; but if the jury should believe from the evidence that the defendant is guilty •of the offense charged in the indictment, then the jury are instructed that under the law they cannot impose a jail sentence, for the reason that the court is of opinion that in no aspect of the case does it appear that there has been any intentional violation of any provision of the prohibition act, and in such cases the law requires that I should instruct you as I do.”

Further: We cannot say that it did or should have appeared to the trial judge from the evidence in the instant case that, if the accused was guilty as charged", there had been no intentional violation of any provision of the prohibition act. On the contrary it is plain that if the accused knew what the package being carried by Mm contained, he was grnlty of an intentional violation of the act. The judge heard the testimony in the case and observed the demeanor of the accused, and doubtless considered the evidence as bearing upon the subject. His refusal of the instruction evidences that he was of opinion that if the accused was gmlty he had intentionally violated the act. We cannot say that he was plainly wrong in coming to that conclusion.

2. Did the court err in refusing to give the following instruction offered by the accused:

“The court instructs the jury that in order to be guilty of transporting ardent spirits as charged in tMs indictment, the defendant must have known that the package handled by Mm contained ardent spirits.”

This question must be answered in the affirmative..

The accused., by his testimony, claimed that he did. not know the contents of the bag he was carrying when arrested. If true, this was a complete defense. This-was the only defense he presented. Whether his testimony on the "point was credible or not was for the jury. They may or may not have believed it to be true. But-certainly, as he expressly asked it, he was entitled to have the jury instructed as requested upon this, the turning point in the ease, upon his theory of the case, to sustain which there was testimony upon the credibility of which he had the right to have the jury pass..

The Attorney-General does not controvert the-position that it was reversible error for the court to-refuse to give the instruction in question; but takes the-position that the error may have been cured by some other instruction or instructions which may have been given; and that it does not appear from the record that-some other instruction was not given which cured the-error; that it must appear from the record that the-appellate court has before it all of the instructions given, or some certificate of the court removing the uncertainty, so that it can see and does see from the record that no instruction was given curing the error, before the court will reverse a case for error in "refusing instructions; citing Harris’ Case, 133 Va. 700, 112 S. E. 753. The rule of procedure relied upon by the Attorney-General is well established, and one that properly governs an appellate court. and which governs this court. But we cannot agree with the position that all of the instructions given do not appear in the record before us, if any instruction was given. The trial judge-certifies in the record before us as follows: “The following instructions were offered * * and the ruling of the court on each of them is hereby certified:” Then follow five instructions, including the instruction in question. Four of these instructions, other than the instruction in question, are in pairs, and under each two of them are the notations, “Refused and exception noted.” (Signed) “J. H. F., Jr.,” the initials of the trial judge. None of these four instructions covers or attempts to cover the same point as the instruction in question, except the one which is in the following language:

“The court instructs the jury that to be guilty of transporting ardent spirits under the law it must be the carrying of.it from one place to some other place.” There is no notation or signature of the judge immediately under this instruction, so that we cannot say whether it was refused or given. If it were material, we would have to hold that it does not appear from the record before us to have been given. But if given, it accentuated the error in the refusal of the instruction in question. If refused, it left the jury uninstructed on the turning point in the case.

As said in Harris' Case, 133 Va. 700, 112 S. B. 753:

“The rule is that the record should show in terms, or by clear inference, that the instructions found in the record are all instructions given by the trial court.” The certificates of the trial judge in the record in the instant case show, as we think, when fairly construed, all of the instructions which- were offered by the accused and the Commonwealth; they show that none of the instructions offered, which had any reference to the subject of the instruction in question, was given, unless the one last above quoted was given, which, as aforesaid, if given, but accentuated the error of the refusal of the instruction in question. Hence, it certainly appears from the record that no instruction was given which cured the error in the refusal of the instruction in question.

The ill health of the trial judge sufficiently accounts for and excuses, as we think, the informality of the certificates with respect to the instructions.

For the error in the refusal of the trial court to give the instruction mentioned in the second question stated above, the case must be reversed and a new trial awarded.

Reversed and remanded for a new trial.