*1 Richmond Ralph Virginia. Wilson Price Commonwealth
December 1968.
Record No.
Present, theAll Justices. (E. brief), Franklin Carter Brodnax Haskins, plaintiff J. error. *2 Button, Y. (Robert Assistant General Attorney
Richard N. Harris, for defendant in error. brief), on General, Attorney of the court. delivered the J., opinion Buchanan, returned an indictment A the Court of against grand jury Hustings defendant, which referred to as Price, herein Wilson charged Ralph or cause be did and to he that placed feloniously unlawfully “place cross, or the Richmond a the of of on burning flaming City property of and of the Commonwealth Virginia.” against peace dignity was based on It is this indictment that 18.1-365 agreed which Code provided: Virginia, cause to or
“It be unlawful for or shall place any person persons another in the Commonwealth placed property a manner exhibit in cross, or or Virginia burning flaming any cross, simulated, is a or a real whole or or flaming or of the owner without first written permission obtaining part, to do.” premises not and was tried Defendant entered jury plea guilty at three which found him fixed his guilty, punishment years He and was sentenced accordingly. granted penitentiary asserts, contention, of error here as his 18.1- writ and principal did not He contends also the Common- streets. did that the un- wealth lack of and statute is prove constitutional.
The evidence established that the cross was and burned placed the defendant on sidewalk of of Richmond in front of the Boulevard, of No. 1212 American North North occupied Transmission. as Acts of
Section originated Chapter Assembly, masks in certain Act to “An entitled: prohibit wearing places circumstances; of certain under certain prohibit placing except exhibits another, conditions, certain on the except property certain exhibits for certain placing purposes, prohibit Acts the State.” within p. Act. four sections of that Section
It was the second of prohibited “to be a mask over sixteen while wearing age any person years in be or appear upon private any public place,” appear the owner without a “from in this State” writing permit property material. thereof,” not here or tenant with exceptions § 18.1-365, before its 2 was in words of Code Section amendment in 1968. masked or made it for unmasked
Section 3 unlawful any person Vir- or cause to Commonwealth of “anywhere placed exhibit or do act “with the intention of intimidating ginia” any them from thereby prevent doing any persons,” or cause them to do an unlawful lawful act act. fixed the
Section 4 above sections. punishment sections were recodified without These 358 of change by Chapter the Acts of Code numbers as now page given they §§ Code, Volume the 1960 18.1- i.e., appear Replacement 364, 18.1-365, 18.1-366 and 18.1-367.
Defendant contends that did not to a streets; that criminal statute it must be construed strictly Commonwealth; that extension its words against beyond by or construction is forbidden; that act committed must implication be within both the letter and the of the statute; and that the de
spirit fendant is entitled to the benefit of reasonable doubt in the con cases struction of statute. Our this contention. support In Gates & Son v. 103 Va. Richmond, 702, Co. 49 S.E. 965, city ordinance that no could fence provided place any porch, step, “or other which shall into street” on projection project penalty of a fine. Defendant was with the ordinance charged by a “skid” of two timber from his placing composed parallel pieces store across sidewalk to deliver to in the street. For this wagons fined, he was but on his conviction was reversed this court appeal in an which stated these opinion principles: ordinance, is, therefore,
“This is construed penal be extended It is not must be limited by implication, strictly. cases described in its em- clearly application abound with cases books The this illustrating ployed. principle, of universal which is instances application,, except particular * * has been modified statute. the doctrine 386 76, 37, L. Ed. Mar- v. 5 Wheat. 5
“In United States Wiltberger, laws are to be construed ‘The rule that shall, observes: C.J., penal It much old than construction itself. is is, less strictly perhaps, n founded individuals, in the tenderness of law rights that the is vested and on the punishment power plain principle * * not the legislative, department. judicial, “ indeed, would be ‘It dangerous, carry principle, statute, case which is within reason or mischief of within so far as to a crime not enumerated in punish provisions, statute, because it is of kindred character with those which are enumerated.’ “ offenses, ‘There can be no constructive and before a man can his case must be within the punished, plainly unmistakably Fuller, statute.’ Chief in U. S. v. Lacher, 134 U.S. 33 624, Justice 1080, 705, Ed. at 704, L. Ct. 625.” 103 Va. E. 965. 49 S. Sup. See also v. Commonwealth, 1080; 109 Va. 63 S.E. Jennings 411, 436, 222, 230, Enoch v. 141 Va. 126 S.E. Commonwealth, stating an accused is as much entitled “to the benefit of reasonable doubt about the law as about the Sellers facts”; 49, 53, v. 198 Va. Bles, 486, 489, and Wade S.E.2d v. Commonwealth, Va. 99, 103.
“ ‘A statute cannot be extended be or made penal by implication, embrace cases which are not within its letter and Such spirit. statutes are construed the State and in favor always strictly against * *” of the citizen.’ v. McKinney liberty 239, 243, 148 E.2d S. 831-2. General asserts that we have held that Attorney clearly used word “another” as in a criminal statute means “another per son” and that is a His reference is to municipality person. 122 E.2d S. *4 assertion is The too broad. In defendant in engaged of a rubber which forging using packages cigarettes stamp stated that the tax thereon due the had falsely City Lynchburg been He § was indicted and convicted under of the paid. that if Code (with stated any provides person forge any writing “to the of another’s he shall be exceptions) prejudice right,” punished as therein We said that the of the were provided. rights City preju- use diced and “The is a whose forged stamp ‘person’
387
203 Va.
rights may
prejudiced by forgery.
(19).”
1-13
Code
I
at
Code it 1-13.19 designated) provides: as and be to bodies extend politic corporate may applied ‘person’ well as individuals.” means that the use Its
The word necessarily “may” permissive. and cor- include bodies word does not in all cases politic “person” where bodies and It is only corporations porate. political distinction. cases illustrate this is reasonable so to it. Our it 369, the defen- In Hall v. 188 Va. Witnesses, was literature dant, a minister of distributing Jehovah’s Richmond in a his church building City large apartment and fined for tres- after forbidden so. He was convicted to do being § amended, 18.1-173, now, as Code, 4480-a of the 1942 pass Code, which that if Vol. 4 of 1950 Repl. provided of law or remains the lands or without premises authority goes “upon another,” forbidden, after he is of misdemeanor being guilty to a fine. Defendant claimed a subject right preach public places the streets said: and on and sidewalks and in We apartments. “* * The statute does not restrain the accused in ac- his tivities in the exercise of his beliefs; from house religious may go streets, to house his on the sidewalks, distributing pamphlets other without the statute. public place violating any provisions of this law is to owners only purpose rights protect * *” or those in lawful control of at 76- private property. S.E.2d at 371. 119 S.E.2d Randolph Again at a restaurant was refused service 817, defendant Thal- operated by Brothers, in its store in the of Richmond himer Incorporated, store after ordered do refused to leave the so. He and he (then 18-225). Code In supra convicted conviction we said that this statute forbids affirming any person law remain without lands authority go upon upon another,” and we the statement Hall, repeated “ of this is to ‘The law only purpose protect rights ” or those in lawful control of owners Va. at private property.’ 119 S.E.2d *5 § In was 18.1-96 for Hanbury, supra, prosecution another’s It was the right.” forgery prejudice its whose had been by Lynchburg right prejudiced stealing It was within the intent and means of clearly money forgery. by § make the statute in such 1-13.19 of the Code to forgery purpose whose had been vio a case to the right city, “person” applicable criminal, a malum in is form of se, lated. stealing, essentially Forgery be a without made known to so universally wrong statute. § contrast, 18.1-365, which defendant Price was
In convicted of involved an offense of a different nature. It concerned an violating, statute, a malum made a crime act prohibitum. only by statute, a strict of the If construction which is re- defendant the act of Price forbidden clearly quired, has terms, Price not committed the crime for which he has been then convicted. statute, 18.1-365, made
This it unlawful “on the of another” cross without written property permission the owner or This is not “of occupier premises.” would consider to be to the sidewalks average person this The words of another” in context would city. “property individual, mean of another and the word reasonably property “prem streets. It does not refer to ises” city only by ordinarily inserting § 1-13.19, the statute the that this into provision permissive be defendant convicted. would not average may properly that was an act which think would committing felony by doing be if done with the of the owner or legal entirely affected. He would have to know that under another statute and different the words another” in the statute “property under which he was indicted included property city. at 120 S. E. In McKay said that a statute cannot be extended this court penal by impli- construction, cation the offense act both within the
“To constitute must letter statute Those who contend it. that a defining spirit must show that the words of the act is imposed distinctly penalty can be had if the are case. No conviction words cover the merely would, of a construction that and one that would capable equally not, inflict the penalty.
“If a statute be as to leave reasonable doubt ambiguous penal of its it is the of the court to refuse meaning, duty impose * #” penalty.
Both and the make it doubt history wording ful it was intended streets and sidewalks. In its *6 enactment sections, as referred to orginial companion above, were made while the specifically public places, §as now not, 18.1-365 was but used paragraph that designated well be to mean what it taken to may interpreted customarily mean, individual i.e., persons.1 We hold that the act of a cross on a sidewalk burning
of Richmond did not violate 18.1-365 of Code as then written. We reverse therefore below dismiss the case. judgment
Reversed and dismissed. and Gordon, JJ., dissenting Carrico
We
of another”, as used
in Code
interpret “property
to include
as well as
In our
such
public
private property.
opinion,
is dictated
v.
Commonwealth,
interpretation
182, 122
S.E.2d
and is not
with the
inconsistent
rule of strict con
struction or
and dicta Randolph
holdings
661, 119
Va.
and Hall v.
with the intention of cross, simulated, in which a real or is a whole burning manner of exhibit flaming written without first the owner or obtaining or a part, to do. prima shall a cross evidence intention “The facie unlawful persons.” group ch. to intimidate Acts p. words The italicized show the changes.