or calling of selling Coca-Cola on Sunday, and, the conviction being sustained on appeal to the circuit court, he brings error. Affirmed. W. E. Allen, of Covington, for plaintiff in error. R. C. Stokes, of Covington, for defend ant in error. no repealing clause. In these circumstances, there was no antagonism between the two statutes. The emergency act was operative at once, and continued in force during the interval between its passage and the time at which the act abolishing bills of exceptions took effect, when it was immediately repealed. The act abolishing bills of exception, now in force, was intended, however, to simplify WHITTLE, P. Plaintiff in error, Ellis, was convicted by the mayor of Covington for the procedure, and is very liberal in its pro violation of a town ordinance in laboring at his trade or calling of selling Coca-Cola on the Sabbath day, and fined $5 and costs. On appeal the circuit court of Alleghany county sustained the conviction, and the case is here on writ of error to that judgment. The ordinance in question is substantially in the language of the act of assembly amending and re-enacting section 3799 of the Code, and declares that: * ex "If a person on the Sabbath day be found laboring at any trade or calling, * cept in household or other work of necessity, or charity, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than five dollars for each offense: * *Provided, that for the purpose of this act, the delivery on the Sabbath day of ice cream manufactured on some day other than the Sabbath day shall be construed as a work of ne-cessity." Acts 1916, p. 751. It may be noted that this amendment, making such violation of the Sabbath day a misdemeanor, changes the rule announced in Wells v. Commonwealth, 107 Va. 834, 57 S. E. 588, where it was held that under the former statute the transgression was not a misdemeanor, and the forfeiture thereby imposed could only be recovered by a civil warrant. [1, 2] Objection is made to reviewing the judgment in this case on the ground that the evidence is not part of the record, though it is conceded that it was certified by the trial judge in accordance with an act approved March 21, 1916. (Acts 1916, p. 708). Yet it is said the Legislature passed another act on the same day, preserving bills of exceptions (Acts 1916, p. 722), and that the two enactments are incompatible and neutralize each -other. The situation is this: The act last referred to was made an emergency act, and went into effect immediately, while the first-mentioned act was not an emergency act, and by constitutional provision did not take effect until 90 days after the adjournment of the Legislature (Const. § 53, art. 4); and it expressly repealed "all statutes or parts of statutes in derogation of, or in conflict with, the provisions of this act." The other act contained visions as to what shall constitute a sufficient certificate. While forms of certificates are prescribed by section 4 of the act, the next succeeding section declares: it shall be suffi "That in all cases cient that the trial judge, on the application of any party, shall certify the same simply and substantially in accordance with the provisions of this act." Other provisions of the act are equally liberal. The mere form of the exception, therefore, even a formal bill of exception under the former practice, will not prevent its consideration, if the provisions of the act are substantially complied with. [3] On the merits of the case, we have no Ellis difficulty in affirming the judgment. was carrying on two well-defined trades or callings under separate licenses: (1) He was conducting an eating house, or restaurant, the exercise of which business on the Sabbath day, admittedly, was not a violation of the ordinance; and (2) he was engaged in selling soft drinks (including Coca-Cola) from a soda fountain, the sale of which on the Sabbath day is a plain violation of the ordinance. Such beverages, though not spirituous or alcoholic, cannot be dispensed without a license; and they constitute a distinct class from coffee, tea, and other unlicensed drinks. which are commonly used at meals with food. His attempt to justify the infraction of the ordinance on the plea that he did not serve Coca-Cola alone, but only in connection with meals, lunches, and pie, when called for by customers, is a palpable subterfuge, and constitutes no defense. Coca-Cola is not within the class of beverages covered by the eating house or restaurant license. If it were, obviously a separate license would not be necessary to authorize its sale. Ellis could not lawfully dispense soft drinks, even week day, without license, and plainly could not, though licensed, ply his calling of selling such drinks on the Sabbath day in any way, so as to escape liability under the ordinance. on a The judgment is without error, and is affirmed. Affirmed. Where defendant in error, who had judgment below, did not disclaim all of the land in controversy, plaintiff in error, not having accepted the disclaimer in satisfaction of his claim, was not entitled to costs up to the time of the disclaimer, and costs were properly allowed to defendant in error under Code 1904, § 3545, declaring that, except where otherwise provided, the party for whom final judgment is given shall recover his costs. Error to Circuit Court, Highland County. Application by C. C. Folkes for an inclusive survey of land. L. M. McClung filed a caveat to prevent applicant from obtaining a new grant upon a resurvey of his lands. In proceedings on the caveat, there was a judgment for caveatee, and the caveator brings erior. Affirmed. Jos. A. Glasgow, of Staunton, and John M. Colaw, of Monterey, for plaintiff in error. Curry & Curry and Timberlake & Nelson, all of Staunton, and Andrew L. Jones, of Monterey, for defendant in error. jury find that the plaintiff has not the better right to said land, or any part of the same, they will say so." Upon the trial of this issue, the caveator, McClung, was the plaintiff, and the caveatee, Folkes, was the defendant. There were two trials and a mistrial of this issue, but for convenience we will speak of all of them as trials. At the first trial there was a verdict for the defendant, which the court set aside on the motion of the plaintiff, because contrary to the evidence, and the defendant excepted. At the second trial there was a hung jury. At the third trial there was again a verdict for the defendant, which the court refused to set aside at the instance of the plaintiff, but entered judgment thereon for the defendant, and to this action of the trial court the plaintiff excepted, and brings the case here for review. er. [1] During the progress of the last trial, the defendant claimed that since the first trial he had discovered errors in the corners and lines sought to be established on the first trial, and offered a new map and evidence to show different corners and lines from those set up at the first trial. The plaintiff objected to this departure from the case as made on the first trial and as shown by the map filed with the application for the inclusive survey, and the court refused to receive the map and evidence, unless the defendant would waive his bill of exception to the action of the court in setting aside the first verdict; the court being of opinion that the defendant should not be allowed to insist offer evidence to show that it was wrong. that the first verdict was right, and then The defendant waived his exception under protest, and excepted to the action of the court in compelling him to make such waivThis action of the trial court is assigned BURKS, J. C. C. Folkes was the owner the view we take of the case it will be unas error by the defendant in error, but in of several tracts of land in Highland county, Va., and, desiring to correct uncertain- necessary to pass on it. Both verdicts were ties or mistakes in the boundaries thereof, in favor of the defendant, and he is in this applied to the circuit court of said county rectness of the last verdict, and asking that court now vigorously insisting on the corfor an inclusive survey thereof. Code, §§ 2337-2360. A caveat to prevent him from obtaining a new grant upon a resurvey of his lands was filed by L. M. McClung. Thereupon the court proceeded in a summary way, without pleadings, with the aid of a jury, [2] There was much evidence taken in the to ascertain the material facts not agreed by the parties as provided by section 2330 of case on both sides, and it is of a highly conthe Code. The jury was sworn to try the flicting nature. In addition to the testimony following issue agreed upon by the parties: of numerous other witnesses, several sur"Has the plaintiff a better right than the de-veyors were introduced by each party whose fendant to the land mentioned in the plaintiff's testimony conflicted, and a number of maps caveat, or to any part of said land? If the jury finds that the plaintiff has a better right to the whole of said land, they will say so. If the jury find the plaintiff has not the better right to the whole of said land, they will say so. If the jury find that the plaintiff has not the better right to the whole of the said land, but has the better right to a part of said land, they will say so, and state in their verdict to what part of the land the plaintiff has such better right. If the the judgment on the last verdict be affirmed. As we are of opinion that he is right in his contention that the judgment should be affirmed, he could not have been hurt by his waiver, though involuntarily made. or blueprints showing points of controversy were also received in evidence. There was also introduced a large quantity of documentary evidence. Several trees, also, alleged to be corners, were blocked and brought into court, and their annulations were pointed out by the witnesses, and finally the jury were taken upon the ground and given a view of the points in controversy. While there was this great volume of evidence relating to the issue submitted to the jury, the parties finally narrowed the issue between them to a single point, and each of them staked the fate of the case on whether the corner of one of the tracts was at a point which we may call A, or at a point which we may call B. At the request of the plaintiff, and without objection from the defendant, the court instructed the jury that, if they believed the corner was at A, they should find for the plaintiff, and at the request of the defendant, without objection from the plaintiff, they were instructed that, if they believed the corner was at B, they should find for the defendant. Other instructions were given at the instance of each of the parties without objection from the other. Under these circumstances, the jury found for the defendant, and we cannot disturb their verdict. No exception was taken to the granting or refusing of instructions, and no objection is made here to the ruling of the trial court on the admission or rejection of evidence. The sole errors assigned are the refusal of the court to set aside the verdict as contrary to the evidence, and the judgment against the plaintiff for the entire costs of the litigation. The plaintiff is here as on a demurrer to the evidence, and we are unable to say that the verdict is without evidence to support it. Counsel for the plaintiff in error have very ably argued to show that certain evidence of fered by the plaintiff in the nature of admissions was conclusive in his favor, and that no evidence to the contrary should be heard, and have offered authority to support their contention, but evidence to the contrary was freely offered and received without objection in the trial court, and we cannot now disturb its judgment. Upon the evidence as it appears in cold print, we think, if on the jury, we would have found a different verdict; but this is not sufficient. We are unable to say from the record that manifest injustice has been done, or that the verdict is without evidence to support it. Jackson v. Wickham, 112 Va. 128, 70 S. E. 539; Blair & Hoge v. Wilson, 28 Grat. (69 Va.) 165. HUMMER et al. v. COMMONWEALTH. (Supreme Court of Appeals of Virginia. Nov. 15, 1917.) 1. CRIMINAL LAW 814 (20)-INSTRUCTIONS -APPLICABILITY. Defendants were indicted on the charge of having unlawfully and feloniously cut and wounded another. Code 1904, § 3671, declaring that, if any person shall maliciously cut or wound another with intent to maim, etc., he shall be punished, etc., and that if the act be done unlawfully, but not maliciously, the offender shall be subject to a less punishment, was read by the clerk to the jury, and requested instructions that defendants could not be found guilty of malicious cutting were refused. Held, that the reading of the entire section, part of which was inapplicable to the offense with which defendants were charged, was error. 2. CRIMINAL LAW 1172(9) HARMLESS ERROR. APPEAL As the jury did not assess the minimum punishment for unlawful and felonious assault, the reading of Code 1904, § 3671, which mentioned a greater punishment, must be deemed prejudicial error. Error to Circuit Court, Clarke County. Jeff Hummer and Weita Costello were separately indicted, but jointly tried, on the charge of having unlawfully and feloniously cut and wounded another. There were judgments of conviction, and defendants bring error. Reversed and remanded. Marshall McCormick, of Berryville, for The Attorney General, . plaintiffs in error. for the Commonwealth. KELLY, J. Jeff Hummer and Weita Costello were separately indicted, but by agreement jointly tried, upon the charge of having "unlawfully and feloniously" cut and wounded one Henry Bean. The jury returned separate verdicts, finding both defendants guilty, fixing the punishment of Miss Costello at a nominal fine and three months in jail, and that of Hummer at one year in the penitentiary. The circuit court sentenced them accordingly, and the case is here upon a writ of error. [3] At the second trial, the defendant entered a disclaimer as to about one acre of the land in controversy. It is insisted by counsel for the plaintiff in error that he should have recovered his costs up to that time, and that the trial court erred in entering judgment against him for the whole cost of the litigation. He refused to accept the disclaimer in satisfaction of his demand, and it is manifest that the land disclaimed was but a very small part of the subject of litigation. Several cases are cited by counsel for the [1] The indictments contained no charge plaintiff in error to sustain his contention, but of "malicious" cutting. After the prisoners it is unnecessary to review them because had been arraigned, and had each entered they appear to be either controlled by local a plea of not guilty, the clerk read the instatutes, or to be cases where the parties dis- dictments to the jury, and, in charging them ciaimed all interest in the whole subject of as to the punishment for the alleged offense, read to them section 3671 of the Code, which the mistaken opinion that there could lawfulis as follows: "If any person maliciously shoot, stab, cut, or wound any person, or by any means cause him bodily injury, with intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be punished by confinement in the penitentiary not less than one nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall, in the discretion of the jury, be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars." This section, in its entirety and without qualification, was read to the jury over the objection of counsel for the prisoners; the objection being "that the indictment in both of these cases was only for unlawful cutting and not for malicious cutting, and therefore that the only part of section 3671 which related to these cases was the last clause which declared the punishment for unlawful cutting." At the conclusion of the testimony on both sides, counsel again sought to have the jury informed that, upon the indictments before them, they could not find the prisoners guilty of malicious cutting, and to this end offerer the following instruction, which, however, the court refused: "The court instructs the jury that under the indictment in this case they cannot find the defendant Jeff Hummer, or the defendant Weita Costello, guilty of maliciously cutting or stabbing as described in the indictment, for the reason that neither of the defendants are charged with doing the act maliciously." It is settled and familiar law that all the constituents of the offense, whether of common-law or statutory origin, for which an accused person is tried, must be set out in the indictment. Minor's Synopsis Crim. Law, p. 253, and cases cited. This general principle necessarily applies where malice is an essential ingredient of the offense. If citation of authority for this proposition be necessary, see 22 Cyc. 330; Sarah v. State, 28 Miss. 267, 61 Am. Dec. 544, 550. It is clear, therefore, that the court erred in permitting the clerk to read to the jury section 3671, without explaining to them that they were not to regard that portion of it which related to the punishment for maliciously doing the acts therein described, and, further, that it was error, in these circumstances, to refuse the instruction set out above. [2] Nor can we say that the error was harmless. Both prisoners were convicted by the jury under instructions which permitted them to find the prisoners guilty of a higher offense, and one carrying a higher maximum and minimum punishment, than that with which they were charged. The ruling of the court upon the reading of section 3671 was made in the presence of the jury. The refusal of the instruction subsequently offered, and other circumstances appearing in the ly be, under these indictments, a conviction for malicious cutting. The atmosphere of the trial was thus necessarily charged with au erroneous view as to the character of the offense and the extent of the punishment. If the jury had imposed the minimum penalty prescribed by the statute for unlawful cutting, then we might well say that the error was harmless; but they did not do this It is true that the as to either prisoner. punishment actually imposed on Miss Costello brought her offense within the class of unlawful, but not malicious, assaults, and that the punishment actually imposed upon Hummer did not reach the maximum which the statute fixes for assaults of that character. Both verdicts might, however, have been legally rendered under an indictment charging malice (Montgomery's Case, 98 Va. 840, 843, 36 S. E. 371); and we cannot say that the jury was uninfluenced by the action of the court in permitting them to try the prisoners for malicious cutting instead of confining them to the charge of unlawful cutting as set out in the indictment. The seriousness of the charge and the range of the punishment may naturally and reasonably be expected to impress, in greater or less degree, the individual judgment and conscience of the jurors, and thus have some material effect upon the composite result of their deliberations as expressed in their verdict. The commonwealth charged these with an unlawful and felonious, but not with a malicious act. They had an absolute and constitutional right to be tried accordingly. They did nothing to waive this right, but upon the contrary did all in their power to preserve and enforce it. defendants The decisions of this court in Mitchell's Case, 75 Va. 856, and Whitlock's Case, 89 Va. 337, 15 S. E. 893, are invoked on behalf of the commonwealth, to meet the difficulty in the instant case. In Mitchell's Case the clerk's charge was erroneous as to the minimum penalty, but the jury fixed the maximum, and it was very properly held that the accused had not been prejudiced. In Whitlock's Case the charge was erroneous as to the maximum penalty, but the verdict was for the minimum, and it was held with equa! propriety that the error was harmless. Neither of these cases are applicable here. The other errors assigned are not likely to arise at the next trial, except in so far as they involve the sufficiency of the evidence to warrant a conviction, and upon this question we express no opinion. The judgments complained of will be reversed, the verdicts of the jury set aside, and the causes remanded for a new trial, to be had not in conflict with the views herein expressed. (122 Va. 123) 15, 1917.) 1. NEW TRIAL 71-VERDICT CONTRARY TO INSTRUCTIONS CON 295(7) STRUCTION AS WHOLE. In an action for death of a servant, where the court instructed that the jury were not to find for plaintiff if they believed from the evidence that the accident occurred through any risk assumed, etc., and that such instruction was to be read in connection with preceding instructions as to the master's duty to exercise ordinary care to provide a reasonably safe place to work, etc., such instructions, thus referred to, were not erroneous, as failing to note the doctrine of assumed risk. 3. TRIAL 295(6) STRUCTION AS WHOLE. INSTRUCTIONS CON An instruction that if the jury believed from the evidence that the death was due to a defective step, and that the master, as defined in previous instructions referred to, had or should have had knowledge thereof, the master was liable, was not erroneous, as omitting a qualification as to ordinary care, in view of the preceding instructions, specifically directed to be read in connection with it, which told the jury that the master was only required to exercise ordinary care. 4. MASTER AND SERVANT 235(7) SAFE PLACE TO WORK-OBLIGATION OF SERVANT TO INSPECT. The employé of a Portland cement company and the cement company itself were not under the same duty to discover a defect in a step used by the employé; it being the company's duty to inspect the steps, while the employé had a right to assume that such duty had been performed, and not unless the defect was obvions was he chargeable with negligence in failing to report it, or chargeable with any assumption of risk. APPLI 5. MASTER AND SERVANT 233(2)—INJURIES TO SERVANT-SAFE PLACE TO WORK-STEPS. An employé, who uses steps, may assume that all parts of them are safe, and is not required to walk in the middle of them. 6. TRIAL 267(3) — INSTRUCTIONS CATION OF DOCTRINE TO PARTICULAR FACT. In an action for death of a servant, caused by a fall from a defective stair, the court properly struck, as unnecessary and misleading, from an instruction which contained a full statement of the law applicable to the safe place to work phase of the case, the words "including the lack of railing at the point in question": it being unnecessary to say that the law of safe place to work, in addition to its general application, was applicable to some particular fact. peril, went as far as the court could go on the master's theory as to the railing. -- 8. MASTER AND SERVANT 288(15) INJURIES TO SERVANT-ASSUMPTION OF RISK. Where, in reply to a servant's inquiry as to when the employer was going to fix the banister ting around, the employer's mill foreman reand walkways, so a man would be safe in getplied, "Just as soon as we can get to them," and directed the servant to go ahead, the servant, in continuing with his work and using the all the risks incident to the lack of railing stairway, did not, as a matter of law, assume at the point where he fell from a loose unnailed step, and under the evidence such question was for the jury. 9. MASTER AND SERVANT 289(4)--CONTRIB. UTORY NEGLIGENCE-QUESTION FOR JURY. In an action for death of servant through a fall from a stairway, whether the servant exercised due care in remaining in service, relying upon the master's promise to provide a handrail, held for the jury. Error to Circuit Court, Augusta County. Action by W. H. Swisher's administrator against the Virginia Portland Cement ComTo review a judgment for plaintiff, pany. defendant brings error. Judgment attirmed. A. C. Gordon and D. Lawrence Groner, both of Staunton, for plaintiff in error. Curry & Curry and Timberlake & Nelson, all of Staunton, for defendant in error. WHITTLE, P. The judgment under review was rendered upon the verdict of a jury awarding damages to the defendant in error for the wrongful death of his intestate, imputed to the negligence of the plaintiff in error, in whose employment Swisher was at the time he was killed. The following narration tells the story of his death: The plant of the plaintiff in error is a large manufacturing establishment, comprising a number of mills, and is equipped with machinery, belting, and appliances of various kinds, employed in grinding the material used in the production of hydraulic cement. Swisher had been in the employment of the company for years, and at the time of the accident was working under Sprouse, the head miller. His place of work was in connection with a series of bins into Which the cement was deposited by conveyors attached to revolving belting. These bins were located 30 feet above the ground floor of the building, and there were narrow walkways, railed in on both sides, about 3 feet above the level of the tops of the bins, over which he passed in going from one bin to another in the discharge of his duties in looking after the bins and conveyors. The descent from the walkways to the bins was by means 7. MASTER AND SERVANT 295(9)-INJURIES of a short stairway, attached to and at right TO SERVANT-INSTRUCTION-ASSUMPTION OF angles with the walkway. These steps were In an action for death of a servant through 3 feet wide and the treads 2 inches thick and a fall from a stairway without a railing, on 8 inches wide, and overlapped the risers account of a loose, unnailed step, an instruction some 4 or 5 inches at each end. The stairthat, when the servant continued to work after way was wholly unguarded by banisters or protesting the absence of a railing, so far as danger incident to the absence of railing was handrails of any description, although the concerned, he continued to work at his own situation was rendered especially dangerous RISK. |