Richardson v. Commonwealth , 140 Va. 467 ( 1924 )

Sims, P.,

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

The questions raised by the assignments of error will be disposed of in their order as stated below.

1. Was there sufficient evidence on the trial now under review to support the verdict in finding the accused guilty of assault and battery?

The question must be answered in the affirmative.

That this conclusion must be reached is apparent from a mere reading of the material testimony, the substance of which is set out above, and hence need not be repeated here. It is plain that the testimony for the Commonwealth on the trial under review was sufficient to warrant the jury in finding that the accused, at the time he fired the shot which killed the deceased, was successfully defending himself from any serious bodily harm by the use of his hands, without the use of any weapon; and that, under the circumstances as they should reasonably have appeared to the accused, he had no need for the use of any weapon, and hence was not justified in the resort to the shooting in order to defend himself.

2. Was the jury misled by the verbal instruction ¡given by the court into believing that they were instructed that they could not find the accused not guilty of any offense, and that they must find him guilty of «orne offense?

The question must be answered in the negative.

We think that it is apparent from a mere reading of the verbal instruction in question that the court was thereby merely calling the attention of the jury to the wide range of punishment permitted by the law in the •event the jury found the accused guilty of any of the different degrees of the offense charged in the indictment; thus merely recalling to their minds the charge which they had already received from the clerk on that •subject, and was not, at that time, attempting to instruct the jury on the subject of whether they should, or •should not, find the accused guilty of any offense what•ever. The latter subject was fully covered by the written instructions which the court had given the jury at ■the conclusion of the introduction of the testimony. And we have no idea that the jury were misled, by what •the court said in the verbal instruction, into thinking ■.that the court intended thereby to modify or change in ■any respect the written instructions already given them; .nor, indeed, that the accused or his counsel so thought, :at the time such verbal instruction was given; else they ■would surely have asked the court to add something to ■such verbal instruction to guard against such an interpretation of it. This was not done. No position was taken before the trial court before verdict indicating that the accused feared that the jury would be misled by the verbal instruction, as it is now, after verdict and for the first time upon the appeal to this court, contended that they were. This very strongly indicates to ■our minds that it was fully understood at the time by all concerned just what the trial court meant as aforesaid by the verbal instruction; and we see no reason to think that the jury ever had any doubt as to such being the correct meaning of it.

The ease will be affirmed.

Affirmed.

Burks and Campbell, J. J.,

expressed some doubt as to the correctness of the answer of the court to the second question propounded in its opinion. Under the circumstances detailed, they thought that the jury may have regarded the oral instruction as tantamount to the expression of the opinion that the accused was guilty of' some offense, and that in view of the latitude of punishment allowed they ought to be able to agree on what that punishment should be. The accused excepted to the instruction when given, which was all the law requires.