Davis v. Commonwealth

• Decision Date: 04 January 1928
• Court: Virginia Supreme Court
• Parties: DAVIS . v. COMMONWEALTH.

143 S.E. 641

DAVIS .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June, 14, 1928.

Error to Circuit Court, Mecklenburg County.

Sam Davis was convicted of assault and battery, and he brings error. Reversed and remanded.

Buford & Raney, of Lawrenceville, for plaintiff in error.

John R. Saunders, Atty. Gen., and Leon M. Bazile and Edwin H. Gibson, Asst. Attys. Gen., for the Commonwealth.

WEST, J. Sam Davis was tried upon his plea of not guilty to an indictment charging that he feloniously and maliciously committed an assault with a certain deadly weapon, to wit, a high-powered automobile, by him "driven and run at, against, towards, and upon" Sterling Jones and six other persons, named in the indictment, who were riding in Jones' car, and that he did with the said automobile, "strike, cut, wound, bruise, and otherwise injure, and otherwise cause bodily harm, with the intention in so doing * * * the parties above named unlawfully and maliciously to maim, disfigure, disable, and kill." The jury found him guilty of assault and battery' and fixed his punishment at six months in jail and a fine of $250. To the judgment of the court, carrying into effect the verdict of the jury, this writ of error was allowed.

Sam Davis was driving an automobile south from La Crosse, in Mecklenburg county. When about three miles from La Crosse, his car collided with an automobile driven by Sterling Jones, which was going north. Both cars were damaged to some extent. Jones received severe cuts and wounds, and other occupants of his car were injured, as a result of the collision.

Plaintiff in error assigns as error the action of the court (1) in refusing to set aside the verdict of the jury and award him a new trial; (2) in giving instructions A, B, and C for the commonwealth; (3) in giving, of its own motion, instructions IB and 1C.

We find no merit in the contention of the commonwealth that petitioner has not sufficiently complied with rule XXII to entitle him to a review by this court of the action of the court in giving instructions A, B, C, IB, and 1C.

We think the grounds of objection stated in the trial court, found on pages 35 and 36 and 32 and 33 of the record; are a sufficient compliance with the rule. Levine v. Levine, 144 Va. 337, 132 S. E. 320.

The instructions given by the court are as follows:

(a) Instructions given for the commonwealth:

A. "The court instructs the jury, if they believe from the evidence that the defendant, Sam Davis, was operating his car at an excessive rate of speed, taking into consideration the condition of the road, at the time his car collided with that of Sterling Jones, and that the car of Sterling Jones was on the right side of the road, injuring him or others therein, they must find him guilty of assault" and battery."

B. "The court instructs the jury that, if they believe that at the time of the collision mentioned in these proceedings the car of Sterling Jones was on the right side of the road, and that the collision was caused by the defendant's failure to keep to the left side of the road, they must find him guilty of assault and battery."

C. "The court instructs the jury that, if they believe from the evidence that the accused was operating his car upon the public roads of the commonwealth while under the influence of intoxicants, and that as a result of his condition he ran into the car of Sterling Jones, and that the car of Sterling Jones was on the right side of the road, injuring him or others, they must find him guilty of assault and battery."

(b) Instructions given for the defendant:

"1. The court instructs the jury that they cannot convict the accused of the crime of malicious wounding or injuring any of the persons mentioned in the indictment, unless they believe from the evidence beyond a reasonable doubt that the accused was actuated by malice in bringing about or causing the collision of the automobile which he was driving with the automobile in which said persons were riding, and unless they further believe from the evidence beyond a reasonable doubt that the accused did so with intent to maim, disfigure, disable, or kill the said persons, or any of them."

"2. The court further instructs the jury that they cannot convict the accused of unlawfully wounding or injuring said persons, or any of them, as charged in the indictment, unless they believe from the evidence beyond a reasonable doubt that he unlawfully brought or drove his car into collision with the car in which said persons were traveling, and further that he did so with intent to maim, disfigure, disable, or kill the said persons, or any of them."

"3. The court further instructs the jury that the word 'maim, ' as used in the indictment, means to violently deprive another of the use of such of his members as may render him less able, in fighting, either to defend himself or to annoy his adversary; that the word 'disfigure' means to inflict a bodily injury, which constitutes a permanent disfigurement of the injured person; and that the word 'disable' means to inflict a bodily injury which permanently disables the injured person."

"4. The court further instructs the jury that an assault is an attempt or offer with force and violence to do a bodily harm to another, and that the intention on the part of the accused to do such bodily harm to another is essential to constitute the crime of assault, and unless the jury believe from the evidence beyond a reasonable doubt that the accused did attempt or offer with force and violence to do bodily harm to the said persons, or some of them, by running his car against the car in which they were riding, they cannot find him guilty of the crime of assault charged in the indictment."

"5. The court further instructs the jury that they cannot convict the accused of the crime of assault, charged in the indictment, unless they believe from the evidence beyond a reasonable doubt that he intentionally operated the automobile, which he was driving, in such a manner as would naturally terrify them and lead the occupants of the automobile, which Sterling Jones was driving at the time of the collision mentioned in the indictment, to believe that he...