Summary
holding that to prove the offense of maliciously discharging a firearm at or against an occupied building, the Commonwealth does not need to prove that the defendant endangered an occupant's life
Summary of this case from Holsinger v. CommonwealthOpinion
43836 Record No. 781163.
June 8, 1979
Present: All the Justices.
Under indictment for shooting into a dwelling house under Code Sec. 18.2-279 the instructions must include every essential element of the offense charged; the Commonwealth has no burden to prove human life in fact endangered for conviction under Code Sec. 18.2-279; evidence supports conviction.
(1) Criminal Procedure — Instructions must Include Every Essential Element of Offense charged.
(2) Criminal Procedure — Statutory Construction — Shooting Into Dwelling House (Code Sec. 18.2-279) — Commonwealth has no Burden to Prove Human Life In Fact Endangered.
(3) Evidence — Supports Conviction of Shooting Into Dwelling House (Code Sec. 18.2-279).
Defendant was convicted of shooting into a dwelling house whereby the life of the occupant was put in peril (Code Sec. 18.2-279) and with sending an inscribed communication containing a threat to kill or do bodily injury. The appeal was granted to certain errors assigned to the shooting conviction, the defendant's arguments on appeal being that the Trial Court failed to instruct the Jury on the essential elements of the offense; that the indictment charged an element of the offense not required by the statute; and that the evidence is insufficient to support a conviction for the offense charged.
1. The Commonwealth has the burden to prove every essential element of the offense charged beyond a reasonable doubt. These elements must be defined by instructions available to the Jury during its deliberations. An explanation of the charge in general terms by the Trial Court to the Jury and the Commonwealth's Attorney's reading of the indictment to the Jury will not satisfy the requirement that every essential element of the offense charged be stated in instructions. The Trial Court thus erred in failing to instruct the Jury on the essential elements of the offense.
2. Under Code Sec. 18.2-279, it is unlawful to shoot "at * * * or against" an occupied building. The Commonwealth is relieved of the burden of proving that human life was in fact endangered, the Legislature having determined that human lives may be endangered by shooting at or against an occupied building. The indictment in the present case merely recited the legislative determination that life was endangered and did no charge this danger as an additional element. The indictment thus stated the statutory definition in terms sufficient to advise what offense was charged as required by Code Sec. 19.2-220. Etheridge v. Commonwealth, 210 Va. 328, 171 S.E.2d 190 (1969) distinguished.
3. The evidence supports the conviction for the shooting offense under Code Sec. 18.2-279.
Appeal from a judgment of the Circuit Court of the City of Richmond, Division II. Hon. William E. Spain, judge presiding.
Affirmed in part, reversed in part, and remanded.
Murray J. Janus (James S. Yoffy; Theodore I. Brenner; Brenner, Baber Janus, on brief), for appellant.
Robert E. Bradenham, II, Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.
Charged with shooting "into a certain dwelling house . . . whereby the life of the occupant . . . was . . . put in peril" in violation of Code Sec. 18.2-279 and with sending "an inscribed communication containing a threat to kill or do bodily injury" in violation of Code Sec. 18.2-60, John Henry Dowdy, Jr., was convicted by a jury of both charges and, by final judgment order 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 Sec. 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."
"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.
[2-3] 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 Sec. 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 person or persons may be put in peril". Former Code Sec. 18.1-152, a predecessor statute, proscribed the act of shooting into an occupied building. Construing that statute, we held that "it is not unlawful to shoot at a dwelling house" and that "the statute is violated only if a person shoots into, that is that the missile strikes or enters, such structure." Etheridge v. Commonwealth, 210 Va. 328, 331, 171 S.E.2d 190, 192 (1969). Following our opinion in Etheridge, the General Assembly enacted Title 18.2 revising Title 18.1. Acts 1975, cc 14, 15. As revised, the statute makes it unlawful to shoot "at . . . or against" an occupied building.
With this history in mind, we construe the language of the present statute as a legislative declaration that human lives may be endangered when a deadly weapon is maliciously discharged at or against a building occupied by people and that such conduct is felonious. In our view, this legislative determination relieves the Commonwealth of the burden of proving that human life was, in fact, endangered.
Citing Code Sec. 18.2-279, the indictment charged that defendant "did shoot into", i.e., that the missiles fired from the shotgun struck, the dwelling; that the life of an occupant "was . . . put in peril"; and that defendant's act was committed "feloniously and maliciously". As defendant notes, the conviction in Etheridge was reversed because the indictment charged an element of the offense not required by the statute, and there was a variance between the charge and the evidence. But here, no additional element was charged; the indictment merely recited the legislative determination that human life was imperiled by the conduct charged. We are of opinion the indictment stated the statutory definition as we have construed it in terms "sufficient to advise what offense [was] charged", Code Sec. 19.2-220, and we hold that the evidence was sufficient to support a conviction of that offense.
As to the conviction under Code Sec. 18.2-60, the judgment order will be affirmed. For the error in failing to instruct the jury on the elements of the offense, the judgment order will be reversed insofar as it confirms the conviction under Code Sec. 18.2-279, and the case will be remanded for a new trial.
Affirmed in part, reversed in part, and remanded.
CARRICO, COCHRAN AND COMPTON. JJ., concur in result.