Taylor v. Commonwealth

• Decision Date: 03 September 1947
• Citation: 183 Va. 587,43 S.E.2d 906
• Parties: TAYLOR. v. COMMONWEALTH.
• Court: Virginia Supreme Court

43 S.E.2d 906

183 Va. 587

TAYLOR.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 3, 1947.

Error to Circuit Court, York County; Frank Armistead, Judge.

Edward V. Taylor was convicted of involuntary manslaughter, and he brings error.

Judgment affirmed.

Before HUDGINS, GREGORY, EG-GLESTON, SPRATLEY, and BUCHANAN, JJ.

Ashton Dovell, of Williamsburg, and R. Nelson Smith, of Yorktown, for plaintiff in error.

Abram P. Staples, Atty. Gen, and Henry T. Wickham, of Richmond, for the Commonwealth.

HUDGINS, Justice.

This writ of error brings under review the second conviction of Edward V. Taylor for involuntary manslaughter on the sameindictment for murder. The first conviction was reversed by this court pursuant to an opinion by a divided court, reported in 185 Va. 224, 38 S.E.2d 440, on the ground that one of the instructions given constituted reversible error.

The evidence introduced in the two trials was substantially the same and need not be repeated. It is sufficient to say that the evidence for the Commonwealth tended to prove murder in the first degree with no ameliorating circumstances and the evidence for the accused—mainly his own testimony—tended to show a justifiable homicide.

The first verdict of the jury, finding the accused guilty of involuntary manslaughter, acquitted him of the higher offenses charged. Code, sec. 4918, expressly provides that on a new trial the accused "shall not be tried for any higher offense than that of which he was convicted on the last trial."^*

The contention of the accused is that, since the record contains no evidence tending to prove involuntary manslaughter, it was error for the court to give any instructions on that grade of offense.

Judge Keith, in the leading case, Burton & Conquest v. Commonwealth, 108 Va. 892, 900, 62 S.E. 376, 379, declared that the verdict of a jury, finding an accused guilty of a lesser degree of homicide, would not be disturbed even though the evidence adduced tended to prove murder in the first degree and none other. Among the reasons for so holding, he said that, unless this practical application of the principles of law was upheld, "owing to the tenderness of juries and their reluctance to impose the highest penalty, many crimes would go wholly unpunished, and thus the rigor of the law would tend rather to the promotion than to the prevention of crime." For nearly fifty years the rule so declared has been followed consistently. Among the many cases applying the rule, see LaMarr v. Commonwealth, 183 Va 859, 33 S.E.2d 641; Puckett v. Commonwealth, 182 Va. 237, 28 S.E.2d 619; Fleming v. Commonwealth, 170 Va. 636, 196 S. E. 696; Maxwell v. Commonwealth, 165 Va. 860, 183 S.E. 452; Tucker v. Commonwealth, 159 Va. 1038, 167 S.E. 253; Connell v. Commonwealth, 144 Va. 553, 131 S.E. 196.

There is authority from other jurisdictions which is not in accord with this rule. In 41 C.J.S, Homicide, sec. 409, this is said: "In some, but not in all, jurisdictions, where there is evidence to establish guilt of a higher degree of crime than that of which the accused is convicted, the verdict will not be set aside even though there is no evidence reducing the degree of crime to that of which the accused is convicted."

For a more detailed discussion, see 26 Am. Jur, Homicide, sections 558-564; 21 A.L.R. 624; 27 A.L.R. 1100; 102 A.L.R. 1029; Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343.

It is reversible error for the trial court to refuse to instruct the jury on the lesser offenses charged in the indictment if there is any evidence in the record tending to prove such lesser offenses. Brad-shaw v. Commonwealth, 174 Va. 391, 4 S. E.2d 752; Rainey v. Commonwealth, 169 Va. 892, 193 S.E. 501; Hale v. Commonwealth, 165 Va. 808, 183 S.E. 180; Richards v. Commonwealth, 161 Va. 1073, 171 S. E. 525; Tucker v. Commonwealth, supra; Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980.

It is not reversible error for the trial court to refuse to instruct the jury on the lesser offenses charged in the indictment if the record contains no evidence tending to prove them. Bell v. Commonwealth, 167 Va. 526, 189 S.E. 441; Little v. Commonwealth, 163 Va. 1020, 175 S.E. 767; Sparf and Hansen v. United States, supra.

Notwithstanding the obiter dicta in several Virginia opinions, we have found no case in which this court has reversed the trial court solely on the ground that the jury were instructed on the lesser grade ofoffense included in the indictment where the only evidence in the record tended to prove a higher grade of crime charged.

"While there is some conflict on the question, the rule supported by the weight of authority seems to be "that if the evidence demands or warrants a conviction of a higher degree of homicide than that found by the verdict, and there is either no evidence in support of acquittal or, if there is, it is not sufficient to warrant or require acquittal, or is disbelieved by the jury, the defendant is not entitled to a reversal or a new trial on the ground that the court instructed on the lower degree of homicide, as to which there was no evidence, the theory being that he is not prejudiced thereby and cannot complain." 26 Am. Jur, p. 330.

The lower court on the second trial was confronted with this situation. The indictment charged the accused with murder, but the effect of the first verdict of the jury, finding him guilty of involuntary manslaughter, under the provisions of Code, sec. 4918, was to acquit him of murder in either degree and voluntary manslaughter. The only verdict, convicting the accused of a felony, that the court could have sustained was a verdict finding the accused guilty of involuntary manslaughter. Under these circumstances, the court allowed, as it should have done, the Commonwealth to introduce all available evidence tending to prove the crime charged. 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. This duty required the court to instruct the jury in no uncertain terms that the first conviction, which had been reversed, acquitted the accused of all degrees of crime charged in the indictment higher than involuntary manslaughter, and that, even if they believed from the evidence that the accused was guilty of murder in the first degree, the provisions of the statute prohibited them from returning a verdict finding the accused guilty of any crime higher than involuntary manslaughter.

The trial court accomplished this purpose indirectly. It confined its instructions for the Commonwealth to the definition of involuntary manslaughter and to the punishment prescribed therefor. The jury would have had a more intelligent understanding of the situation if they had been told why, if they believed the accused to be guilty of any offense, they were limited in fixing the...