Burgess v. Commonwealth , 136 Va. 697 ( 1923 )

Burks, J.,

delivered the opinion of the court.

The plaintiff in error was indicted for malicious assault with intent to kill, and was found guilty'of simple assault and sentenced to confinement in jail for twelve months and to pay a fine of $200.

The Commonwealth examined three witnesses on the subject of the shooting, all policemen of the city of Norfolk, and all of whom were eyewitnesses of a part or all of what transpired at the time. The conviction, however, is dependent upon the testimony of policeman Douglas, who is contradicted in important particulars by other witnesses for the Commonwealth, and by disinterested witnesses for the accused.

The record presents a singular muddle on the subject of instructions, with nothing to explain it. Certificate of exception No. 3 states: “The following instructions granted at the request of the plaintiff and of the defendant respectively, as hereinafter denoted, are all the instructions that were granted on the trial of this case.” Then follow two instructions, numbered respectively 1 and 2, and immediately below them, the signature of the judge. The tenor of these two instructions indicate-that they were asked by the Commonwealth. Below the signature of the judge, follow three instructions-apparently asked by the accused, but unsigned and not otherwise made a part of the record. Instruction No. 1, embraced in the certificate No. 3 aforesaid, was as-follows: |-t

“The court instructs the jury that if they believe-from the evidence beyond a reasonable doubt that the accused, after an altercation with officer Douglas, and before he was out of shooting distance'of him, drew a. pistol and shot same six times as the automobile was moving away and in such manner and under such circumstances as would naturally lead the said officer to \ believe that the pistol was being shot at him and with intent to terrify said officer, they should find him guilty of simple assault, notwithstanding the accused had no intention to strike him. Simple assault is punishable by confinement in jail not more than twelve months or by a fine not exceeding $600.00, either or both.”

Certificate of exception No. 2 is in the following-words and figures:

“The court instructs the jury that if they believe from the evidence beyond a reasonable doubt that the accused, after an altercation with officer Douglas, and before he was out of shooting distance of him, drew a pistol and shot some six times as the automobile was moving away and in such manner and under such circumstances as would naturally lead the said officer to believe that the pistol was being shot at him and with intent to terrify said officer, they should find him guilty of simple assault, notwithstanding the accused had no intent to strike him, and fix his punishment at twelve (12) months in jail and a fine of two hundred dollars ($200.00).

“The foregoing instruction was granted at the request of the Commonwealth and the defendant excepted.

“Teste: This 28th day of March, 1922.

“W. H. Sargeant, Judge.”

This instruction is manifestly and plainly wrong as to the punishment for assault, and it is significant that the verdict accords with it exactly. The record is contradictory in itself. Certificate of exception No-3 purports to give “All the instructions that were granted on the trial of this ease,” and yet does not embrace the instruction set out in certificate No. 2. Instruetion No. 1 set out in certificate No. 3 is identical with the instruction contained in certificate No. 2 except in the concluding clause. Instruction No. 1 concludes with the complete sentence: “Simple assault is punishable by confinement in jail not more than twelve months or by a fine not exceeding $600.00, either or both.” The instruction in certificate No. 2 is not a complete sentence, but, as a part of a preceding sentence, concludes “and fix his punishment at twelve (12) months in jail and a fine of two hundred dollars ($200.00).” In certificate No. 2 the judge certifies over his signature, that the instruction therein quoted was granted at the request of the Commonwealth and the defendant excepted, and we have no power to say that such was not the fact. We might surmise as to what the facts were, and how the inconsistency arose, but we cannot indulge in such surmise. It might be wrong. We must decide the case on the record before us. Upon the record, the instruction embodied in certificate No. 2 was given and the defendant excepted. It is manifestly erroneous, and it is immaterial whether instruction No. 1 as set forth in certificate No. 3 was given or not. If given it did not correct the error in the instruction set forth in certificate No. 2. For this error, the judgment of the trial court must be reversed.

It is also assigned as error that the trial court permitted certain questions to be asked and answered over the objection of the accused. There is no separate bill or certificate of exception pointing out specifically the ground of the objection, but only a general certificate of all the evidence introduced in the cause, with occasional notations by the stenographer “exception noted.” In the application for the writ of error it is stated that the trial court erred in the “admission of the improper evidence contained in the following answers to the following questions,” and then follows three pages of questions and answers copied from the record. When we turn to the record we find several rulings of the court, and “exception noted” to only one of them, and as to most of the questions embraced in those copies as aforesaid no objection was made, and of course no exception noted. We have several times held that exceptions to the rulings of the trial court on the admissibility of testimony cannot be saved in this way. Norfolk & W. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811; Kibler v. Commonwealth, 94 Va. 804, 813, 26 S. E. 858; Robertson v. Atlantic Coast R. Co. 129 Va. 494, 504-505, 106 S. E. 521; Myers & Stewart v. Commonwealth, 132 Va. 746, 111 S. E. 463.

For the error of the trial court in giving the instruction set forth in certificate of exception No. 2 the judgment must be reversed, and the case remanded for a new trial.