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 
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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.