Lewis v. Commonwealth

• Decision Date: 06 June 1945
• Citation: 184 Va. 69,34 S.E.2d 389
• Parties: LEWIS . v. COMMONWEALTH.
• Court: Virginia Supreme Court

34 S.E.2d 389

184 Va. 69

LEWIS .

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

June 6, 1945.

HOLT, HUDGINGS, and GREGORY, JJ., dissenting.

Error to Circuit Court, Nelson County; Edward Meeks, Judge.

Barbara Lewis was convicted of disorderly conduct and common assault, and she brings error.

Verdict of conviction for disorderly conduct canceled and annulled, defendant discharged from further prosecution on such charge, judgment on verdict of conviction for common assault reversed, and case remanded for a new trial on such issue.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Hill, Martin & Robinson, of Richmond, and W. S. Diuguid, of Lynchburg, for plaintiff in error.

Abram P. Staples, Atty. Gen., and V. P. Randolph, Jr., Asst. Atty. Gen, for the Commonwealth.

CAMPBELL, Chief Justice.

On the 24th day of August, 1944, the defendant, Barbara Lewis, was tried before the trial justice of Nelson county upon a warrant which charged that she "did on the 20th day of August, 1944, unlawfully be disorderly on the bus operated through Nelson county, Virginia, and commit an assault on one J. F. Gardner." The trial justice, J. B. Massie, entered this judgment against her: "Upon the examination of the within charge, I find the accused guilty and impose a fine of $50.00 and costs." From this judgment the defendant appealed to the Circuit Court of Nelson county.

Upon a plea of not guilty, issue was joined and there was a trial by a jury. After introduction of evidence upon the part of the Commonwealth and the defendant, the court, upon motion of the attorney for the Commonwealth, gave to the jury the following instructions:

"A. The Court instructs the jury that the warrant in this case contains two charges, and that the jury should render separate verdicts on each charge.

"B. The Court instructs the jury that disorderly conduct constitutes a crime and as such is punishable as a misdemeanor. The jury are, therefore, instructed that if they believe from the evidence, beyond a reasonable doubt, that the accused was, at the time alleged in the warrant, guilty of disorderly conduct in Nelson County, Virginia, they should so find and fix her punishment at a fine of not more than $500.00 or confinement in jail for not exceeding twelve months, or both."

The verdicts returned by the jury are as follows:

"We, the jury, find the accused, Barbara Lewis, guilty as charged in this case, dis-orderly conduct, and fix her punishment at sixty (60) days in jail and fifty dollars ($50.00) fine.

"(Signed) E. R. Stratton, Foreman."

"We, the jury, find the accused, Barbara Lewis, guilty of common assault as charged in the warrant and fix her punishment at four months in jail and one hundred and fifty dollars fine ($150.00). "(Signed) E. R. Stratton, Foreman."

The motion to set aside the verdicts was overruled and judgment was entered thereon.

There is no contention upon the part of defendant that the evidence would not justify a verdict of guilty upon a proper charge of assault, if set forth in a legal warrant.

The defendant assigns as error the refusal of the trial court to set aside the verdict of the jury convicting her of disorderly conduct "on the bus."

It is the contention of defendant that disorderly conduct "on a bus" is not a crime either at common law or under the provision of section 4533 of Michie's Code.

The contention that disorderly conduct is not a common law crime is well founded.

While it is true that the common law obtains in Virginia unless modified by statute, it is also true that unless disorderly conduct was a crime at common law, it is not a crime in Virginia unless made so by ordinance or by statute.

In Encyclopedia Criminal Law, vol. 3, par. 1319, we read:

"Disorderly conduct--As a crime. Disorderly conduct is not, eo nomine, an offense at common law, and hence is not punishable as a separate and distinct crime unless made so by statute or ordinance, * * *." See City of Mt. Sterling v. Holly, 108 Ky. 621, 57 S.W. 491; State v. Moore, 166 N.C. 371, 81 S.E. 693; State v. Sherrard, 117 N.C. 716, 23 S.E. 157.

In 18 Corpus Juris, page 1216, the rule is thus stated:

"Disorderly conduct is a statutory offense. The statutes now in force in England providing for the arrest and punishment of persons charged with idleness, disorderly conduct, vagrancy, etc, are the statute of 5 George IV, c. 83, passed in 1824, and the amendatory acts of land, 2 Victoria, c. 38, 31 and 32 Victoria, c. 52, and 32 and 33 Victoria, c. 99. Stouten burgh v. Frazier, 16 App.D.C. 229, 236, 48 L.R.A. 220."

In 27 Corpus Juris Secundum, Disorderly Conduct, § 1, p. 277, it is said: "At common law there was no offense known as 'disorderly conduct.' "

Since it is patent that defendant was not guilty of a common law offense, the question then is, was she guilty of a violation of section 4533 of Michie's Code?

The pertinent part of the section is as follows:

"If any person, whether a passenger or not, shall, while in any car or caboose, or on any part of a train carrying passengers or employees of any railroad or street passenger railway, behave in a riotous or disorderly manner, he shall be guilty of a misdemeanor."

At the time of the enactment of the statute by the Legislature in its session of 1899-1900, the common carrier known as a bus had not come into existence. The fact that, during the period of years following, the statute has not been amended so as to include disorderly conduct on a bus, is no concern of the court. The province of the court is to interpret the law, not enact it. The statute is perfectly plain and only provides for penalties for being disorderly on "any car" or "caboose, " or on any part of a "train" or "street railway."

It is urged upon us by the assistant attorney general that the question involved is concluded by the ruling of this court in Byrd v. Commonwealth, 158 Va. 897, 164 S.E. 400. That case was not dealing with a question of disorderly conduct, but had reference to the common law offense of a breach of the peace.

Since section 4533 of the Code is a penal statute, it must be construed strictly in favor of defendant. Young v. Commonwealth, 155 Va. 1152, 156 S.E. 565. To read into the statute something not contemplated by the Legislature would be to contravene the universal rule which is succinctly stated in 25 Ruling Case Law, sec. 218, as follows:

"Courts 'cannot read into a statute something that is not within the manifest intention of the Legislature as gathered from the statute itself. To depart from the meaning expressed by the words is to alter the statute, to legislate and not to interpret.'" See McKay v. Commonwealth, 137 Va. 826, 120 S.E. 138.

The action of the court in giving instruction B, supra, was erroneous and the action of the court in refusing to set aside the verdict of the jury finding the defendant guilty of disorderly conduct constitutes reversible error.

The action of the court refusing to set aside the verdict of the jury which found the defendant guilty of common assault, is assigned as error.

Under the provisions of sections 4989 and 4990, appeals from convictions in a justice's court are to be tried de novo, without any formality in pleading, and with full power in the circuit court to amend the warrants in any particular; or, when the warrant is so defective in form that the offense charged is uncertain, the judge may issue under his own hand his warrant reciting the offense charged against the defendant.

While...