Sullivan v. Commonwealth , 157 Va. 867 ( 1931 )

Campbell, J.,

delivered the opinion of the court.

Eugene Sullivan, Harry Crawford and Eugene Thomas were jointly indicted by the grand jury in the Hustings Court of the city of Roanoke. There is but one count in the .indictment which charges “that Eugene Sullivan, Harry ■Crawford and Eugene Thomas heretofore, towit on the........ •day of January, 1930, in the daytime of that day, within the jurisdiction of this court in the city of Roanoke, Virginia, feloniously did break and enter a certain dwelling house, which said dwelling house is situate within the city of Roanoke, Virginia, with the unlawful and felonious intent to ■commit an assault therein upon one Joe Nash, and with the unlawful and felonious intent to maim, disfigure, disable and .kill the said Joe Nash, who was then and there in said dwelling house, and which said dwelling house was then and there occupied as a dwelling house by the said Joe Nash.”

Eugene Sullivan and Harry Crawford were arraigned, and “plead not guilty to the charge of breaking and entering a dwelling house with intent to maim as alleged against them in the indictment.” They thereupon moved the court for separate trials, and the Commonwealth elected to try Eugene Sullivan.

In bill of exception No. 1 it is certified “that before the commencement of this trial, the judge, on motion of counsel for the defense, required the attorney for the Commonwealth to elect under which section of the Code of Virginia the accused would be tried and the attorney for the Commonwealth stated that he would elect to try the defendant under section 4438.”

No objection was made by the accused either to this ruling, which was made on his own motion, or to the statement of the attorney for the Commonwealth, in obedience thereto, that he elected to try the accused under section 4438. The trial thereupon proceeded, with the acquiescence of the accused, under that section, with express notice that he was; being tried upon the charge that the breaking was with intent to commit murder.

The evidence introduced by the Commonwealth, if true, proves the following facts:

Joe Nash resided with his wife in an apartment on the second floor of a building on Salem avenue, in the city of Roanoke, where he sold intoxicating liquors. The entrance to this apartment was by a front door which gave entrance to a hall-way in which there was a flight of steps leading to-the apartment above. This front door was not locked or bolted; but at the head of the stairs there was a door, giving entrance to the rooms occupied by Joe Nash, which was locked. At the side of this door was a peep-hole, which enabled the occupants of the apartment to see one presenting; himself at the door before permitting him to enter.

During the afternoon of January 2, 1930, Harry Crawford, who had come to the apartment to buy liquor, had an altercation with the wife of Joe Nash, in the course of which he slapped her; and thereupon Joe Nash picked up a stick and hit him over the head with it, after which Crawford left the apartment.

A little later, between four and five o’clock in the afternoon, Joe Nash heard some persons coming up the steps in the hallway and looking through the peep-hole saw Harry Crawford, with a knife, Jimmy Patton with a knife, Joe Smith with a pair of knucks, and Eugene Sullivan with a pistol in hand coming up the stairway leading to his apartment.

Eugene Sullivan (accused) demanded that Nash open the door. Joe Nash refused to open the door and asked them to leave. Sullivan then said: “Joe Nash, you will not flash any more knives on nobody else, you:......................., I have come to kill you; I will shoot the door down or break it down.” He then fired several shots into the door, on the opposite side of which Nash was standing with his hand on the lock. One of the bullets fired struck the metal lock on the door, and others struck either the door or the partition wall through which the door gave entrance. After the first shot had been fired and threat made to kill him, Joe Nash ran out of the house by a rear exit.

Either Sullivan or one of the three men with him then broke out a panel of the door and reached in and unlocked the door; and all four men entered. Sullivan came in first with his pistol dn his hand, and was followed by Harry Crawford.

After entering, Sullivan went into the dining room where he found W. M. Lockard asleep, and kicked him in the face, saying, “you get up, you have a knack of drawing knives on people too.” He then struck Lockard again, and said, “where is that........................Joe Nash, I will get him for cocking knives on people;” and in Lockard’s hearing said that he was looking for Joe Nash to kill him, and that he would kill him if he saw him. He then went into the kitchen with his pistol in his hand, and in the presence of the negro servant pulled out a knife and said, “this is one time we will fix Joe Nash.”

In a short time Sullivan left the house by the front door and went out on the street, where he met H. J. Shepherd and M. L. Harvey, two police officers of the city of Roanoke, who were in conference with Joe Nash when he walked up. However, no arrest of Sullivan was made until the next day.

Then, in support of his defense as upon a plea of not guilty, the accused, Sullivan, testified that he had no pistol, fired none of the shots, did not himself break in the door, and did not threaten to kill Joe Nash; and in these denials he is corroborated by other witnesses. He testified that his reason for being there was to get a drink of whiskey.

As to these conflicts in the testimony it is only necessary to say that the testimony for the Commonwealth is sufficient to support the verdict.

The court gave but one instruction, which seems to have been orally and extemporaneously delivered, and is as follows :

“The court instructs you that the burden is upon the Commonwealth to prove the guilt of this man beyond a reasonable doubt by reliable evidence. If you believe beyond a reasonable doubt that Eugene Sullivan did this shooting, or if you believe he was with others, aiding and abetting, whether or not he actually did the shooting, and if you believe that this was done with intent to commit murder, rape or robbery, you will find him guilty and fix his punishment at not less than three nor more than fifteen years. The burden is upon the Commonwealth to prove beyond a reasonable doubt. If you find him not guilty you will say so. You can only arrive at the intent of a man from what he does or what he says, and in this case the burden is upon the Commonwealth to prove the intent as well as the facts.

“Rid your minds of whether or not this was a bootlegging joint or not, and treat it as if it were the home of any other man in this city, white or colored, and do not let the fact that it was a bootlegging joint have any influence on you.”

The attorney for the accused objected to this instruction, and assigned this and no other ground of objection thereto:

“The instruction is predicated upon section 4438 of the Code, while the indictment is drawn under section 4439 of the Code, and that the indictment in this case is fatally defective as an indictment under section 4438 of the Code, and that the instruction states the punishment at not less than three nor more than fifteen years, while the punishment under section 4439 is from two to ten years.”

The jury returned a verdict which read: “We, the jury, :find the defendant guilty and fix his sentence at five years.” Whereupon the court directed the jury to amend its verdict to read: “We, the jury, find the defendant guilty, as ■charged, and fix his punishment at five years in the penitentiary,” which the jury did.

The accused moved the court to set aside the verdict and grant him a new trial “upon the ground that the same was contrary to the law and the evidence, and a misdirection of the jury,” which so far as the record discloses was the only specification of the grounds upon which the defendant moved the court to set aside the verdict. The court overruled the motion and entered judgment thereon.

The first assignment of error is that “the court erred in permitting the indictment to be tried upon section 4438 of the Code of Virginia at the election of the Commonwealth’s attorney, even though the defendant by counsel required the Commonwealth’s attorney to elect under which section of the Code the accused would be tried.”

This assignment is inaccurately phrased, for the court required this election in response to a motion of the attorney for the accused.

The second assignment of error is that the court erred in instructing the jury that the jury could, under this indictment, find the accused guilty of breaking and entering with intent to commit murder, rape or robbery and fix his punishment at from three to fifteen years in the penitentiary— that is, the punishment prescribed for the offense specified in section 4438 of the Code—and should have instructed the jury that under this indictment the greatest offense for which Sullivan could be found guilty was breaking and entering with intent to maim, disfigure, disable and kill Joe Nash, and that if it found him guilty of such charge, it should fix his punishment, in accordance with the provisions of section 4439, at not less than one nor more than ten years in the penitentiary, or, in its discretion, at confinement in jail not exceeding twelve months and a fine of not exceeding $500.00.

Neither of these assignments of error can be sustained.

Virginia Code 1919, section 4438, reads: “If any person in the night enter without breaking or in the daytime break and enter a dwelling house or an outhouse adjoining thereto and occupied therewith, or in the nighttime enter without breaking or break and enter either in the daytime or nighttime any office, shop, storehouse, warehouse, banking house or other house, or any ship or vessel or river craft or any railroad car with intent to commit murder, rape, or robbery, he shall be confined in the penitentiary not less than three nor more than fifteen years.”

Virginia Code 1919, section 4439 (as amended by laws 1928, chapter 163) reads: “If any person do any of the acts mentioned in the preceding section, with intent to commit larceny, or any felony other than murder, rape or robbery, he shall be confined in the penitentiary not less than one year nor more than ten years, or, in the discretion of the jury, confined in jail not exceeding twelve months, and fined not exceeding $500.00. If any person, armed with a deadly weapon, shall enter any banking house, in the daytime or in the nighttime, with intent to commit larceny of money, bonds, notes, or other evidence of debt therein, he shall be punished with death, or by confinement in the penitentiary for life, or for any term not less than five years.”

The indictment charged a breaking and entering with the-intent to maim, disable, disfigure and kill, and that which, was done in this case upon motion of the accused was, in its-effect, to amend the indictment after plea filed, at the suggestion and with the acquiescence of the accused, so as to-accord better with the testimony, and specifically to charge-the accused with breaking and entering the dwelling house of Joe Nash with the intent to commit murder, rape, or-robbery therein.

Such an amendment is permissible under Ya. Code 1919, section 4878, which reads:

“If there be any defect in form in any indictment for treason or felony, it shall be competent for the court in which the case is pending for trial, after the defendant pleads, to amend the said indictment, provided such amendment does not change the nature of the offense charged; and if, on the trial of any case, there shall appear to be any variance between the allegations of the indictment and the evidence offered in proof thereof, it shall be competent for the court before which the trial is had to amend the said indictment, according to the proof, provided such amendment does not change the nature of the offense charged; and after such amendment the indictment as amended shall be read to the accused, and he shall be allowed to plead anew, if he so desires, and the trial shall proceed in all respects, and with the same consequences, as if no variance had occurred, unless such amendment shall operate as a surprise to the defendant, in which case the defendant shall be entitled, upon request, to a continuance of the cause.”

The two sections (4438 and 4439) might well have been combined for they refer directly, though not solely, to, and define as an offense, the breaking and entering of a dwelling house in the daytime, with intent to commit murder, rape, or robbery (4438), or larceny, or any felony other than murder, rape, or robbery (4439). The overt acts constituting the crime are the same—that is, the breaking and entering. The intent with which the particular crime is committed does not change its general nature or character, because whichever intent is shown, the crime is of the same nature—that is, a felony of the specific class denounced by the statute. That the punishment for such a crime differs with the differing intent does not within the meaning of Code, section 4878, authorizing amendment to indictments, change the nature of the crime chargéd. That statute is remedial, and in accordance with the accepted rule should be construed liberally to correct the evil at which it is directed, and to promote the remedy thereby provided. The legislative intent is to simplify criminal procedure. A narrow construction of the statute (4878) would defeat its wise purpose. We are in full accord with that purpose.

The manifest purpose of this statute is to allow amendments which avoid unnecessary delays and further the ends of justice, without prejudice to the substantial right of the accused to be informed of the accusation, and to one fair trial on the merits. Jennings v. Commonwealth, 133 Va. 726, 112 S. E. 602; Young v. Commonwealth, 155 Va. 1156, 156 S. E. 565.

That the bare fact that the amendment allowed authorizes a greater punishment than that authorized for the offense charged in the original indictment does not of itself change the character of the offense charged, is expressly held in Kelley v. Commonwealth, 140 Va. 522, 125 S. E. 437, 440, where we find this expression: “The amendments in question did not change the character of the offense charged in the original indictment. The charge with respect to the conduct of the accused which was alleged as rendering the accused guilty of an offense remained unchanged, namely, that she ‘did unlawfully * * * store for sale ardent spirits.’ Precisely the same conduct on the part of the accused was charged in the amended as in the original indictment. The amendments of the indictment concerned merely the matter charged in aggravation of the offense as compared with the offense if it had been a first offense, and of the punishment therefor, under the statute; which did not at all change the character of the second offense itself for which the accused stood indicted. In so far as the second offense was concerned, the accused was given, by the indictment after it was amended, exactly the same information of the cause and nature of the accusation charged and against which she had to make her defense, as did the original indictment.”

So, in this case, the bare fact that the amendment so allowed charged a different intent, though based on the same overt acts, i. e., breaking, entering and shooting, which intent, while if proved would enhance the punishment, nevertheless did not, within the meaning of the statute, change the nature of the offense charged in the original indictment. As amended the indictment still charged a felony of the same general nature or class.

Just why the attorney for the accused moved the court to require the attorney for the Commonwealth to elect under which of the sections he would prosecute the accused does not appear. We shall therefore not speculate as to the motive. Whatever the motive, the same consequences follow. The accused acquiesced in the prosecution for a breaking and entering with intent to commit murder, rape or robbery. That was the charge which he defended arid about which he testified. After the evidence had been concluded he should not have been permitted to claim that he could not be prosecuted under section 4438. By this acquiescence he waived the right to make that contention because it was inconsistent with his own motion to require the prosecutor to elect under which section he should be tried. The motion, by necessary implication, conceded the right to try the accused under either section. Though the procedure was so irregular, the accused cannot be allowed to take advantage of an irregularity for which he is directly responsible. He cannot approbate and reprobate—invite error and then take advantage of his own wrong.

There is still another view of the case which leads to the same result. The failure to instruct the jury as to the extreme punishment permitted under section 4439, i. e., not less than one nor more than ten years confinement in the penitentiary, even had it been error, should be held to be immaterial under the circumstances of this case, because the term fixed by the jury is within these limits, i. e., five years. He might have been prosecuted under either section, and the fact that the jury refused to fix the minimum allowance under section 4438, i. e., three years, suggests the conclusion that as they exceeded that minimum, they would, under the same testimony, also have exceeded the one year (or other lesser penalty) authorized had he been prosecuted under section 4439.

The term fixed by the jury being within the limits prescribed by both sections, even if the instruction had been erroneous, it would not, under the facts of this case, justify a reversal.

The case, then, is one which calls for the application of Code, section 6331, which forbids this court to reverse any judgment “for any error committed on the trial, where it plainly appears from the record and the evidence given at the trial that the parties have had a fair trial on the merits and substantial justice has been reached.” Walker v. Commonwealth, 144 Va. 651, 131 S. E. 230.

Our conclusion, therefore, is to affirm the judgment.

Affirmed.