Price v. Commonwealth
132 Va. 582
Va.
1922
Check Treatment
Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

[1, 2] The questions raised by the assignments of error will be disposed of in their order, as stated below:

1. Was instruction No. 3 erroneous?

We are of opinion that this instruction correctly stated the law as applicable to this case.

As said in 23 Cyc. 574-5: “It is well settled that a judicial officer, when required to exercise his judgment or discretion, is not liable criminally for any error which he commits, provided he acts in good faith. But any judicial of*588ficer who acts corruptly is responsible criminally, whether he acts under the law or without the law.”

As said in Bishop’s New Cr. Law (8th ed.), sec. 460: “One serving in a judicial or other capacity in which he is required to exercise a judgment of his own, is not punishable for a mere error therein or a mistake of the law. His act, to be cognizable criminally, or even civilly, must be willful and corrupt.”

In the opinion of the court, delivered by Judge Brockenbrough in Jacob’s Case (which was a prosecution of justices of the peace), 2 Leigh (29 Va.), at p. 715, this is said: “It is a well-settled principle that a judicial officer cannot be prosecuted criminally for any judgment rendered by him, however illegal, unless rendered from some motive of malice, partiality or corruption. Much less can such a prosecution be carried on, where the act done is within the plane of his lawful authority, without such corrupt motive.”

We do not mean to approve of the method resorted to by the justice in the case before us of having persons drink the liquor in order to testify as to its character. Such a proceeding is too liable to abuse. The statute law prescribes a different method for the ascertainment of such fact where it is necessary. Section 4621 of the Code provides the method of obtaining an analysis of the liquor, and that method should be resorted to where all other available existing evidence leaves the character of the liquor in question in reasonable doubt. Nevertheless, if the accused acted in the premises in the discharge of his duty as a justice of the peace, and in entire good faith, however mistakenly, he was not liable criminally, and the instruction under consideration correctly submitted the ascertainment of those facts to the jury.

[3] 2. Were instructions Nos. 1 and 2 erroneous?

This question must be answered in the affirmative. These instructions are both instructions to find the accused guilty, *589and are both predicated upon but a partial view of the evidence. They both ignore the uncontroverted testimony of and for the accused to the effect that he acted in his official capacity and entirely in good faith, with the sole purpose of discharging what he conceived to be his duty as a justice of the peace. Upon well-settled principles, both instructions were erroneous.

[4] 3. Was the concluding oral instruction given to the jury by the court erroneous?

This question also must be answered in the affirmative.

While doubtless intended to apply only in the event that the jury should find the accused guilty of violation of the prohibition law, and in that case would have been a perfectly proper instruction under the statute, it does not clearly say so. As given, it sets out, by expressing the opinion of the trial judge that it appeared to be a case of violation of the prohibition law, albeit one of an unintentional violation of such law. This was such an invasion of the province of the jury as to constitute in itself reversible error.

The case must, therefore, be reversed, and a new trial awarded, to be had, if the case is further prosecuted, in conformity with the views above expressed.

Reversed.