Lewis v. Commonwealth, Record No. 2966.
| Decision Date | 06 June 1945 |
| Docket Number | Record No. 2966. |
| Citation | 184 Va. 69 |
| Court | Virginia Supreme Court |
| Parties | BARBARA LEWIS v. COMMONWEALTH OF VIRGINIA. |
1. DISORDERLY CONDUCT — Not a Common Law Crime. — Disorderly conduct is not a common law crime.
2. DISORDERLY CONDUCT — Not a Common Law Crime — Necessity for Ordinance or Statute. — 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.
3. STATUTES — Province of Court Is to Interpret and Not Enact. — The province of the court is to interpret the law, not enact it.
4. MOTOR VEHICLE CARRIERS — Disorderly Conduct — Disorderly Conduct on Bus. — Section 4533 of the Virginia Code of 1942, provides for penalties for being disorderly on "any car" or "caboose," or on any part of a "train" or "street railway." The statute is perfectly plain and does not cover disorderly conduct on a common carrier known as a bus.
5. CARRIERS — Disorderly Conduct — Statute Construed Strictly. — Since section 4533 of the Code of 1942, relating to disorderly conduct on a train or streetcar, is a penal statute, it must be construed strictly in favor of defendant.
6. MOTOR VEHICLE CARRIERS — Disorderly Conduct — Disorderly Conduct on Bus — Case at Bar. — In the instant case, a prosecution for disorderly conduct on a bus and assault on the driver of a bus, the court instructed the jury that disorderly conduct constituted a crime and that the warrant contained two charges and that the jury should render separate verdicts on each charge. The jury returned separate verdicts of guilty, first, as to disorderly conduct, and second, as to assault.
Held: That the action of the court in giving the instruction was erroneous.
7. MOTOR VEHICLE CARRIERS — Disorderly Conduct on Bus — Evidence of Disorderly Conduct as Prejudicial in Trial of Assault — Case at Bar. — In the instant case, a prosecution for disorderly conduct on a bus and assault on the driver of a bus, the court instructed the jury that disorderly conduct constituted a crime and that the warrant contained two charges and that the jury should render separate verdicts on each charge. The jury returned separate verdicts of guilty, first, as to disorderly conduct, and second, as to assault. The court permitted the Commonwealth to introduce evidence on the question of disorderly conduct.
Held: Error. If the conduct of defenant was to be considered as applicable only to the charge of the assault on the ground that it was all a part of the res gestae, then it was unquestionably true that it was error to allow the Commonwealth to introduce evidence on the question of disorderly conduct and it was plainly inferable that the introduction of this evidence caused the jury to magnify the nature of the assault charge. The action of the court in trying the defendant upon a separate charge which in law did not amount to a crime, was highly prejudicial.
Error to a judgment of the Circuit Court of Nelson county. Hon. Edward Meeks, judge presiding.
The opinion states the case.
Hill, Martin & Robinson and W. S. Diuguid, for the plaintiff in error.
Abram P. Staples, Attorney General, and V. P. Randolph, Jr., Assistant Attorney General, for the Commonwealth.
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:
The verdicts returned by the jury are as follows:
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:
See Mt. Sterling Holly, 108 Ky. 621, 57 S.W. 491; State Moore, 166 N.C. 371, 81 S.E. 693; State Sherrard, 117 N.C. 716, 23 S.E. 157.
In 18 Corpus Juris, page 1216, the rule is thus stated:
In 27 Corpus Juris Secundum, sec. 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."
3, 4 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 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.
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Lewis v. Commonwealth
...... which in law did not amount to a crime, was highly prejudicial. Under all the circumstances as they are displayed in the record", we are unable to conclude that the trial of defendant upon the charge of assault measures up to the standard of a fair and impartial trial. \xC2"......