Hale v. Commonwealth

Sims, J., after making the foregoing statement, delivered the following opinion of the court: In the view we take of the case, it will be necessary for us to consider only one of the questions raised by the assignments of error, and that is this: 1. Did the action of the trial court with respect to the punishment, which is set forth above, constitute reversible error? The question must be answered in the affirmative. No question is raised before us, nor seems to have been raised in the trial court, as to the admissibility of the affidavit of the jurors. The position is taken in the petition of the accused that the affidavit was admissible, under the authority of Moffett v. Bowman, 6 Gratt. (47 Va.) 219, to show that the verdict was rendered under a mistake as to its legal effect. This position is not assailed by the Attorney-General. That the jury might properly have taken into con [779] sideration the previous punishment which the accused had already undergone under the former judgment— which had been judicially annulled as void as of the time it was entered—we think admits of no doubt; this not by virtue of any statute, but because it was but fair and just to the accused for the jury so to do. And when the court told the jury that they could not, and in substance, that the court could and would do this, the court erroneously instructed the jury as to the law. And we think that this error was prejudicial to the accused in that it caused the jury to fix a longer term for the confinement of the accused in the penitentiary than they would otherwise have fixed. The error was therefore reversible error. In the brief of the Attorney-General attention is called to section 5019 of the Code, as amended by Acts 1920, p. 394, which is as follows: “The term of confinement in jail or in the penitentiary for the commission of a crime shall commence and be computed from the date of the judgment; but any person who may hereafter be sentenced by any court or justice to a term of confinement in jail for the commission of a crime, or in default of the payment of a fine, shall have deducted from any such term all time actually spent by such person in jail awaiting trial, or pending an appeal, and it shall be the duty of the court or justice when entering the final order in any such case to provide that such person so convicted be given credit for the time so passed. No such credit, however, shall be given to any person who shall break jail or make an escape.” (Italics supplied.) And the position is taken for the Commonwealth that the motion of the accused that the court instruct the jury to allow credit for the time the accused had previously served was made under the statute just [780] quoted, which, does not provide for such an allowance where the time has been served in the penitentiary, but only where it has been served in jail. That this was an error made by counsel for the accused which led the court into the error in question, and the doctrine of invited error, as laid down in Wolonter v. U. S. Casualty Co., 126 Va. 156, 167, 101 S. E. 58; State v. Calhoun, 67 W. Va. 666; 69 S. E. 1098; Louisa County v. Yancey, 109 Va. 229, 63 S. E. 452; Bugg v. Seay, 107 Va. 648, 60 S. E. 89, 122 Am. St. Rep. 877; Levy v. Davis, 115 Va. 814, 80 S. E. 791; and N. & W. Ry. Co. v. Mann, 99 Va. 180, 37 S. E. 849, is relied on as barring the accused from complaining of the aforesaid error of the court. We cannot see, however, that this doctrine has any application in the instant case. We find nothing in the record to show that the motion just mentioned, asking the court to instruct the jury on the subject, was made under the statute mentioned. We think that the accused was entitled to an instruction on the subject independently of any statute. We cannot assume, therefore, that counsel for the accused based the motion on the aforesaid statute. Nor do we think that the record shows that counsel based the motion after verdict, asking the court for the allowance of the credit of time, upon said statute. The more probable inference would seem to be that counsel made this motion merely to bring the accused within the terms of the previous assurance given by the court that the credit of time asked for would be given by the court after verdict, so as to have the record show that the accused was in fact prejudiced by said previous assurance, when, after verdict, it was found that the statute did not permit the court to carry out its promise, and the court for that reason (and, hence, properly) did not carry it out. We suppose that at the time the latter motion was made both the court [781] and counsel for the accused had referred to the statute and found that the court had no authority in the premises. The harm was done, however, not when this motion was made, but during the trial, when the motion for the instruction to the jury on the subject was made; and we do not think that the record shows that the error which the court made at that time was invited by counsel for the accused. 2. It must not be understood that we mean that the court should have given an imperative instruction to allow for the time served. Indeed, the action of the court in refusing to give the instruction is not assigned as error, and hence is not a subject which is before us, except incidentally. But, as it is thus before us, and, as the request for instruction on the point is likely to be made on another trial, we feel that we should say that, if so asked for, a proper instruction on the point should be then given. 3. The other questions raised by the other assignments of error are all of such character that they are not likely to arise on another trial, so that it is unnecessary for us to deal with any of them. For the reasons stated above, the verdict must be set aside, the judgment under review annulled, and a new trial will be granted. Reversed and new trial granted.