129 Va. 763 | Va. | 1921
delivered the opinion of the court.
F-. M. Ambrose, the plaintiff in error, was convicted of stealing an automobile, the property of F. J. Schriioele, of the value of $1,000, and sentenced to confinement; in the penitentiary for two years. A writ of error was awarded to the judgment of conviction, and we are asked to review it.
The peitiori for the writ of. error states that from the record two questions arise:
“1. Was the automobile alleged to have been stolen the property of F. J. Schmoele or the property of his wife, Holmes Pretlow Schmoele? and
The defendant asked for three instructions which the court refused to give. The refusal to give his instruction No. 3 is not assigned as error.
There was no error in making the addition, which correctly stated the law.
If it be conceded that the instruction correctly stated the law, it was not error to refuse it, as it was fully covered by instruction No. 4, given for the Commonweálth. It is not desirable to multiply instructions and is not error to refuse even a correct instruction on a point upon which the jury has already been fully and correctly instructed.
“The court instructs the jury that chattels and personal property, when the donor and donee reside together, can only be conveyed by deed or will, and that if they believe from the evidence beyond a reasonable doubt that F. J. Schmoele made an oral gift of the automobile in this case to his wife, with whom he was living at the time, it did not operate to pass the title and the property remained that of F. 3. Schmoele; but the court further instructs the jury that ‘intent’ is the essence of the crime of larceny, and if they believe that the defendant honestly thought the auto
The sole objection to this instruction is that the jury were misled by the statement in the first part of the instruction, “that if they believe from the evidence beyond a reasonable doubt that F. J. Schmoele made an oral gift of the automobile in this case to his wife, with whom he was living at the time, it did not operate to pass title and the property remained that of F. J. Schmoele.” Conceding the error of the words quoted, the jury could not have been misled by their use, for the instruction proceeds at once to tell the jury that, although Mrs. Schmoele was not the owner, yet if the defendant honestly thought she was and acted on that belief, they should acquit him.
We find no error to the prejudice of the plaintiff in error, and the judgment of the hustings court will, therefore, be affirmed.
Affirmed.