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Darnell v. Commonwealth7/5/1988
EF-->174 Va. 461, 465, 5 S.E.2d 497, 499 (1939). Although Instruction No. 3 was not on its face limited to the negligence theory of involuntary manslaughter, it related specifically and solely to the degree of negligence required for a conviction. While negligence was essential to the first theory of involuntary manslaughter as defined in the jury instructions, the second theory was based solely on the prosecution of some unlawful act with no mention of negligence. With no connection between "reckless" and "negligent," and with no definition of "reckless," the jury could have understood the criminal negligence instruction to relate only to the first theory of criminal liability, and thus could have convicted the defendant on the mere violation of the statute. We, therefore, hold that the trial court should have
instructed the jury that the defendant's violation of the statute must have involved criminal negligence as defined in Instruction No. 3, and that the failure to do so was not harmless error.
Finally, appellant argues that the evidence was insufficient to sustain her conviction. If the evidence is insufficient, principles of double jeopardy bar a retrial and the reviewing court must direct a judgment for acquittal. Burks v. United States, 437 U.S. 1 (1978). Having reviewed the evidence, we cannot conclude that it is legally insufficient so that "no other verdict save that of 'not guilty' could properly be reached." Allen v. Commonwealth, 171 Va. 499, 504, 198 S.E. 894, 897 (1938). Therefore, we reverse and remand this case for a new trial.
Reversed and remanded.
Disposition
Reversed and remanded.
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