Burnette v. Com., 4047

• Decision Date: 20 April 1953
• Docket Number: No. 4047,4047
• Citation: 194 Va. 785,75 S.E.2d 482
• Court: Virginia Supreme Court
• Parties: FLOYD L. BURNETTE v. COMMONWEALTH OF VIRGINIA. Record

Page 482

75 S.E.2d 482

194 Va. 785

FLOYD L. BURNETTE v. COMMONWEALTH OF VIRGINIA.

Record No. 4047.

Supreme Court of Appeals of Virginia

April 20, 1953.

Robert Lewis Young, Leith S. Bremner, William A. Wright, for plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and Frederick T. Gray, Assistant Attorney General, for defendant in error.

JUDGE: HUDGINS

HUDGINS, C. J., delivered the opinion of the court.

This writ of error brings under review a judgment entered on a verdict finding the accused, Floyd L. Burnette, guilty of possession of burglarious tools, with intent to commit burglary and larceny, and sentencing him to confinement in the State penitentiary for a term of five years.

Defendant's first contention is that the statute (Sec. 18-159) under which he was indicted and convicted is unconstitutional and void.

This question was not raised in the lower court. However, it has been held in former decisions of this Court that the constitutionality of a penal act may be challenged on appeal, even though the question was not raised in the trial court. The basic reason for this holding is that if a statute creating a crime and fixing the punishment therefor is unconstitutional, there is no crime at all and no penalty to inflict. When this situation 'is brought to the attention of the court at any place, in any way, whether by demurrer, plea, motion or otherwise, the case is at once dismissed, as there is no offense to be punished. It need not be specially pleaded. This rule applies to the appellate court as well as the trial court, although the point is made in the appellate court for the first time. ' Pine v. Com., 121 Va. 812, 93 S.E. 652; Dixon v. Com., 161 Va. 1098, 172 S.E. 277; Hagood v. Com., 157 Va. 918, 162 S.E. 10; Adkins v. Richmond, 98 Va. 91, 34 S.E. 967.

There has been no change in the statute since it was codified by the 1919 Code Revisors (section 4437, now section 18-159 of the 1950 Code). It is as follows: 'If any person break and enter the dwelling house of another in the nighttime with intent to commit a felony or larceny therein, he shall be deemed guilty of burglary, though the thing stolen, or intended to be stolen, be of less value than fifty dollars. If any person be guilty of burglary, he shall be punished with death or, in the discretion of the jury, by confinement in the penitentiary not less than five nor more than eighteen years. If any person have in his possession any tools, implements or outfit, with intent to commit burglary, robbery, or larceny, he shall be deemed guilty of a felony and be punished by confinement in the penitentiary not less than five nor more than eighteen years. The possession of such burglarious tools, implements or outfit by any person other than a licensed dealer, shall be prima facie evidence of an intent to commit burglary, robbery or larceny. ' (Italics supplied)

Defendant concentrates his attack upon the last sentence of the statute (which, for convenience, has been italicized) and argues that it is unconstitutional because it makes the mere possession of common, ordinary tools of a trade or calling, by one other than a licensed dealer, prima facie evidence of intent to commit a crime. This conclusion he reaches by contending that the word 'such' used in this sentence refers to the phrase 'any tools,' etc. used in the preceding sentence. He further argues that on the sole basis of such innocent act, the statute compels the accused to be a witness against himself and thereby deprives him of the presumption of innocence, in violation of the fifth and fourteenth amendments to the Constitution of the United States and Article I, sec. 8 of the Constitution of Virginia, providing that no person shall be compelled in a criminal case to be a witness against himself nor be deprived of life, liberty or property without due process of law.

The statute, properly construed, violates none of these provisions of the Constitutions. As first adopted in 1878 (Acts 1877-78, p. 288) it read as follows: 'Any person who shall be guilty of burglary, shall be punished with death, or, in the discretion of the jury, by confinement in the penitentiary for a period not less than five nor more than eighteen years. If a person break and enter the dwelling-house of another in the night time, with intent to commit larceny, he shall be deemed guilty of burglary, though the thing stolen, or intended to be stolen, be of less value than twenty dollars. If any person hare in his possession any tools, implements, or other outfit known as burglars' tools, implements, or outfit, with intent to commit burglary, robbery, or larceny, he shall be deemed guilty of a felony, and on conviction thereof, shall be punished by confinement in the penitentiary not less than five nor more than ten years. The possession of such burglarious tools, implements, or outfit, shall be prima facie evidence of an intent to commit burglary, robbery, or larceny.' (Italics supplied)

This act was incorporated in the Code of 1887, sec. 3704, without change. The 1919 Code Revisors changed it by transposing several sentences, included the common law definition of burglary, and omitted the descriptive phrase 'known as burglars' tools, implements, or outfit' (since the word 'burglarious' used in the last sentence adequately expressed the idea). They failed, however, to eliminate the word 'such' preceding the word 'burglarious.' The word 'such,' as originally used, was descriptive and relative, and its antecedent was 'known as burglars' tools, implements, or outfit. ' Elimination of this antecedent left the word meaningless; and the Revisors' failure to eliminate it also was obviously inadvertent. This conclusion is supported by their note to the section, in which it is said: 'The phraseology of this section has been changed so as to include common law burglary in the definition of burglary under the statute, and there is a transposition of sentences at the beginning of the section, but no material change has been intended. ' (Italics supplied)

The act has been in force for more than seventy-five years and, so far as we are advised, this is the first time its constitutionality has been attacked in this Court. This is doubtless due to the fact, that, before permitting the prosecution to invoke the statutory presumption, the trial courts have consistently required the Commonwealth to prove that tools found in the possession of persons charged with violating the statute are in fact such tools as are commonly used in breaking and entering.

Viewing the history of the statute and its purpose, proper construction requires that the word 'such' be ignored or deleted. This principle of construing legislative acts is in accord with the following general rule: 'It is the duty of the courts to give effect, if possible, to every word of the written law. But if a word or clause be found in a statute which appears to have been inserted through inadvertence or mistake, and which is incapable of any sensible meaning, or which is repugnant to the rest of the act and tends to nullify it, and if the statute is complete and sensible without it, such word or clause may be rejected as surplusage. ' Black on Interpretation of Laws, sec. 39, p. 83, quoted with approval in Looney v. Commonwealth, 145 Va. 825, 133 S.E. 753; Howell v. Com., 187 Va. 34, 46 S.E.2d 37.

This construction of the statute makes the meaning of the last sentence clear and consistent with the legislative intent to adopt a rule of evidence making possession of burglarious tools (by one other than a licensed dealer) prima facie evidence of intent to commit burglary, robbery or larceny.

In recent years the constitutionality of statutes, making proof of one fact presumptive or prima facie evidence of another fact, has been attacked on various grounds; namely, that they constitute a violation of the due process clauses of the State and Federal Constitutions; a denial of equal protection of the laws; an encroachment upon the powers of the judiciary; a compulsion of the accused to give testimony against himself; an impairment of the right of trial by jury; and a deprivation of the presumption of innocence to which every accused person is entitled. This subject has been discussed in numerous cases, text books and legal periodicals, many of which are cited in the Annotation in 162 A.L.R. p. 495.

In Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.ed. 904, the constitutionality of an act of Congress was attacked upon the ground that it made possession of opium presumptive evidence that the opium had been illegally imported. In upholding the validity of the act, the court said: 'Every accused person, of course, enters upon his trial clothed with the presumption of innocence. But that presumption may be overcome, not only by direct proof, but,...