COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
ARTHUR LYNN COOK
v. Record No. 0587-94-4 OPINION BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JUNE 20, 1995
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
Roland M.L. Santos for appellant.
Steven Andrew Witmer, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Arthur Lynn Cook (defendant) was convicted by jury of
attempted second degree murder. Defendant contends on appeal that
the "crime did not exist" because no attendant penalty was
prescribed by statute. We agree and reverse the conviction.
On the date of the instant offense, August 10, 1993, Code
§ 18.2-32 defined "[a]ll murder[,] other than capital murder and
murder in the first degree[,]" as "murder of the second degree,"
"punishable by confinement . . . for not less than five nor more
than forty years." Id. (emphasis added). At that time, Code
§ 18.2-26 prescribed the several punishments for "attempts to
commit an offense which is a noncapital felony," differentiating
each by specific reference to the "maximum punishment" of the
underlying consummated crime. Id. (emphasis added); see also Code
§ 18.2-10. However, former Code § 18.2-26 did not provide a
punishment for an attempted felony which was punishable by
confinement for a maximum of forty years. Thus, although
defendant's conduct may have been proscribed by statute, it was an
offense without a penalty.
A review of the legislative history of Code §§ 18.2-32 and
18.2-26 discloses that Code § 18.2-32 was amended during the 1993
session of the General Assembly, increasing the punishment for
second degree murder from a Class 3 felony, "not less than five
years nor more than twenty years," Code § 18.2-10, to "not less
than five nor more than forty years." Code § 18.2-32. However,
Code § 18.2-26 was not correspondingly amended to embrace the
enhanced penalty for a violation of Code § 18.2-32 until the 1994
session of the legislature. The Commonwealth reasons that this
"history . . . shows that an oversight occurred" urging that we
"give life to the intent of the legislature" and affirm the
conviction.
We recognize that "the primary objective of statutory
construction is to ascertain and give effect to legislative
intent." Crews v. Commonwealth, 3 Va. App. 531, 535-36, 352 S.E.2d
1, 3 (1987) (citation omitted). However, "[i]t is . . .
fundamental . . . that penal statutes 'must be strictly construed
against the state and limited in application to cases falling
clearly within the language of the statute.'" Commonwealth v.
Knott, 11 Va. App. 44, 47, 396 S.E.2d 148, 150 (1990) (quoting
Crews, 3 Va. App. at 536, 352 S.E.2d at 3). "Words of a penal law
will not be extended by implication to the prejudice of the
accused, and all reasonable doubt must be resolved in his favor."
Waller v. Commonwealth, 192 Va. 83, 88, 63 S.E.2d 713, 716 (1951)
(citation omitted).
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"[A] crime is made up of two parts, forbidden conduct and a
prescribed penalty. The former without the latter is no crime."
Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law
§ 1.2(d) (1986); see United States v. Evans, 333 U.S. 483, 486
(1948); State v. Fair Lawn Serv. Ctr., Inc., 120 A.2d 233, 235
(N.J. 1956); Redding v. State, 85 N.W.2d 647, 652 (Neb. 1957);
State v. Ching, 619 P.2d 93, 94 (Haw. 1980). Criminal penalties
"should be provided with that degree of clarity that characterizes
all criminal law, to the end that its application must not be left
to conjecture." McNary v. State, 191 N.E. 733, 740 (Ohio 1934).
If a criminal statute or ordinance does not specify a penalty, it
is beyond our province to prescribe one on the assumption that the
deficiency was simply an "oversight." See Evans, 333 U.S. at 486;
Fair Lawn Serv. Ctr., 120 A.2d at 236. "[D]efining crimes and
fixing penalties are legislative, not judicial, functions." Evans,
333 U.S. at 486.
Although the amendments to Code § 18.2-26 subsequent to
defendant's misconduct included attempts at Code § 18.2-32
offenses, the revised statute may not retroactively assign
punishment to prior acts. See Brushy Ridge Coal Co. v. Blevins, 6
Va. App. 73, 78-79, 367 S.E.2d 204, 207 (1988) (quoting Duffy v.
Hartsock, 187 Va. 406, 419, 46 S.E.2d 570, 576 (1948)).
Defendant was, therefore, convicted for conduct which
constituted no crime at the time of the offense. Accordingly, we
reverse the judgment of the trial court.
Reversed and dismissed.
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