Dowdy v. Com.

• Decision Date: 08 June 1979
• Docket Number: No. 781163,781163
• Citation: Dowdy v. Com., 255 S.E.2d 506, 220 Va. 114 (1979)
• Parties: John Henry DOWDY, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 506

255 S.E.2d 506

220 Va. 114

John Henry DOWDY, Jr. v. COMMONWEALTH of Virginia.

Record No. 781163.

Supreme Court of Virginia.

June 8, 1979.

Murray J. Janus, Richmond (James S. Yoffy, Theodore I. Brenner, Bremner, Baber & Janus, Richmond, on brief), for appellant.

Robert E. Bradenham, II, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

Charged with shooting "into a certain dwelling house . . . whereby the life of the occupant . . . was . . . put in peril" in violation of Code § 18.2-279 and with sending "an inscribed communication containing a threat to kill or do bodily injury" in violation of Code § 18.2-60, John Henry Dowdy, Jr., was convicted by a jury of both charges and, by final judgment ordered entered May 16, 1978, sentenced to the penitentiary for terms of four years and one year, respectively, the terms to run consecutively. We granted a writ of error limited to certain errors assigned to the shooting conviction.

Defendant was released from the penitentiary in April 1977 after serving a term for a narcotics conviction. In the early morning hours of July 13, 1977, he drove to the home of the officer who had arrested him for that offense, left a rock inscribed with a threatening message near his mailbox, and fired a shotgun blast into his front storm door. The officer was not at home. His wife, who was in the rear portion of the house, heard the glass break, but thinking it was caused by the effects of high humidity and the air conditioning system, she did not notify anyone until her husband returned later that morning.

At the arraignment, the indictments were read and, in general terms, the trial court explained the charges to the jury. During closing arguments, defendant's attorney read the indictment on the shooting charge and the attorney for the Commonwealth read Code § 18.2-279. The trial court granted eleven instructions requested by the Commonwealth; none defined the elements of the shooting offense. Defendant proffered an instruction patterned after the statute, but it was refused and the jury retired. The trial court denied defendant's request that the indictment "go to the jury with the instructions."

][1-3] It is elementary that the burden is on the Commonwealth to prove every essential element of the offense beyond a reasonable doubt." Powers v. Commonwealth, 211 Va. 386, 388, 177 S.E.2d 628, 629 (1970). Unless those elements are defined by instructions available to the members of the jury during their deliberation, they cannot properly determine whether the Commonwealth has carried its burden. The duty to give such instructions is not discharged by simple reference to the indictment, See United States v. Bosch, 505 F.2d 78, 82 (5th Cir. 1974), or by reading the applicable statute to the jury, See United States v. Harris, 346 F.2d 182, 184 (4th Cir. 1965). "It is always the duty of the court At the proper time to instruct the jury on all principles of law applicable to the pleadings and the evidence (emphasis added)", Taylor v. Commonwealth, 186 Va. 587, 592, 43 S.E.2d 906, 909 (1947), and "a correct statement of the law applicable to the case, When the law is stated, . . . (is one of the) essentials of a fair trial (emphasis added)", Limbaugh v. Commonwealth, 149 Va. 383, 400, 140 S.E. 133, 138 (1927).

We hold that the trial court erred in failing to instruct the jury on the essential elements of the offense.

Contending that the indictment charged an element of the offense not required by the statute, defendant argues that the evidence was insufficient to support a conviction of the offense charged. Specifically, he says that the Commonwealth had the burden of proving as a fact that the life of the occupant of the dwelling "was . . . put in peril". We disagree.

Under Code § 18.2-279, it is a Class 4 felony "maliciously" to discharge a firearm "at or against any dwelling house or other building when occupied by one or more persons, whereby the life or lives of any such...