Johnson v. Commonwealth

35 S.E.2d 594, 184 Va. 409, 1945 Va. LEXIS 160

• Court: Supreme Court of Virginia
• Decided: October 8, 1945
• Docket: Record No. 3015
• Status: Published

Opinions

Campbell, C. J.,

delivered the opinion of the court.

Garrett Johnson was indicted for a violation of the provisions of section 4402 of the Code, the charge being that he “in and upon one R. W. McAllister did make an assault and him, the said R. W. McAllister, feloniously and maliciously did wound, and did cause him, the said R. W. Mc-Allister, bodily injury with intent him, the said R. W. Mc-Allister, then and there to. maim, disfigure, disable and kill, against the peace and dignity of the Commonwealth of Virginia.”

Upon the trial, the jury returned this verdict: “We the jury find the defendant, Garrett Johnson, guilty of malicious wounding as charged in the indictment and fix his punishment at three (3) years in the penitentiary.”

The motion to set aside the verdict was overruled and defendant was sentenced in accordance with the verdict.

The evidence introduced by the Commonwealth and the defendant is in sharp conflict. Since the conflict has been by the verdict of the jury resolved in favor of the Commonwealth, it is unnecessary for us to review the evidence in its entirety.

This is a summary of the evidence of the Commonwealth as set forth in the brief filed by the Attorney General:

“The complaining witness in this case, R. W. McAllister, an employee of the Chesapeake and Ohio Railway for eighteen years, was a supervisor of one of their roundhouses. The defendant, aged twenty (20) years, was a helper at the roundhouse whose duties were to blow out the ashes from the ash pans of engines serviced at the roundhouse. The shift on which these two worked on the night of the alleged offense was the so-called second shift, i.e., from 3:00 p. m. to 11:00 p. m.

“At 9:30 p. m., McAllister told the defendant and the defendant’s brother, who also worked on servicing the engines, to take engine number 2732 to the ash pit for service. Ordinarily it takes about forty minutes to service an engine, and when an hour and fifteen minutes had passed without the engine being returned McAllister at 10:45 p. m., went up to the ash pit to see what was the matter. In the presence of a witness named Jamersón, McAllister asked the defendant: ‘What’s the hold-up on 2732?’ whereupon the defendant, with a gun in his hand, replied: ‘I’m Goddam tired of having you curse at me. I’m not going to take it any more.’ McAllister rejoined: ‘What’s the matter with you? Are you crazy?’ The defendant then said, ‘Take off your glasses.’ By this time another witness named Moore had arrived on the scene and Jamerson was leaving. McAllister refused at first to take off his glasses, as he says ‘I knew if I took ’em off I was blind.’ McAllister, then started toward the roundhouse, whereupon the defendant, among other abusing epithets, called McAllister ‘a Goddam white son of a bitch.’

“The defendant having put the pistol in his pocket, Mc-Allister turned, came back to the scene, and just as he took his glasses off and before he could defend himself the defendant hit him with his fist along the side of the head, which blow reeled McAllister backward and turned him to the right. Before he could recover, he received another blow in the back: ‘I made a turn, about a half turn, and about the time I got half turned something hit me like a sledge hammer, right in the back, and broke two of my ribs right at the vertebra.’ ”

It is assigned as error that: “There has been no wounding of the prosecutor as contemplated by the maiming statute, section 4402 of the Code.”

Section 4402 reads:

“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 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, br be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars.”

There is conclusive proof that as a result of the assault of defendant, McAllister received two broken ribs.' The question for' our determination is, did the injury received by McAllister constitute a wound as contemplated under the provision of section 4402?

The reliance of the Commonwealth to sustain the” verdict is upon what is known as the medical definition of a wound. In Taylor’s Medical Jurisprudence a wound is defined as “A solution of the natural continuity of any of the tissues of the body.”

Though several of the states have adopted the medical definition of a wound, Virginia is not included in this list. The prevailing doctrine in Virginia, which follows the West Virginia rule as defined by Judge Poffenbarger in State v. Gibson, 67 W. Va. 548, 68 S. E. 295, 28 L. R. A. (N. S.) 965, is conclusively stated by Mr. Chief Justice Prentis in Harris v. Commonwealth, 150 Va. 580, 142 S. E. 354, 58 A. L. R. 1316. In that case Harris was indicted under the provisions of.section 4402, the charge being that he “did make an assault and him, the said L. E. Collins, feloniously and maliciously did strike and wound, with intent, # # * .” The accused was convicted of unlawful wounding with intent as charged, and sentenced to one year’s confinement in the penitentiary. The proof adduced by the Commonwealth to sustain the charge of malicious wounding, was that Collins received a bruise as a result of a blow administered by Harris with a stick. The single question involved in the case is “Whether, under the maiming act, it is necessary, in order to constitute a wounding and support a conviction for such wounding, the skin must be broken or cut.” In reversing the judgment of the trial court, Mr. Chief Justice Prentis said:

“In Bishop on Statutory Crimes (2d ed.), section 314, page 290, in discussing the maiming act, this is stated: ‘A “wound” is a breach of the skin, or of the skin and flesh, produced by external violence. * * * Without such parting of the skin, it seems, there can be no wounding; for a man was held not to be wounded when his person was bruised, and his collarbone fractured. Yet a disruption of the internal skin—as, that within the mouth, or the membrane lining the urethra—will suffice.! And the text is supported by the authorities.

“This construction of this statute seems to have been universally followed, a recent case being State v. Gibson, 67 W. Va. 548, 68 S. E. 295, 28 L. R. A. (N. S.) 965, where it is said: ‘As the evidence fails to show any solution or breaking of the skin of the prosecuting witness, lack of an essential element of the offense charged in the indictment is asserted, under the technical rule that there can be no wound, within the meaning of the maiming statute, without a solution or fracture of the skin. This position seems to be well sustained by authority. There must be a complete breaking of the skin, external or internal. Our statute (section 9, chapter 144, Code 1906), in so far as it uses the terms “stab, cut, or wound,” is the same as the English statute of 9 Geo. IV, and the term “wound” in that connection has been limited in its meaning to the extent above stated. R. v. Wood, 4 Car. & P. 381. # * Anything with which the skin is broken is sufficient, though blunt, provided it is a weapon other than those with which the human body is naturally provided.’

“It is probable that the reason for this seemingly narrow construction of the word ‘wound’ can be thus explained: First, that statutes defining new crimes should be strictly construed, and also because of the manifest disposition to charge and prosecute as felonies under this statute offenses which heretofore had been classed as simple assaults— misdemeanors. The true purpose and meaning of the statute was doubtless conceived to be to define and punish as felonies those acts which had theretofore been considered misdemeanors only in those cases where it also appeared that there was the felonious intent to maim, disfigure, disable, or kill. However this may be, we find no sufficient reason for departing from a rule which has been so long established. It should cause no failure of justice if those engaged in criminal prosecutions are properly careful in drawing indictments, for in the very same clause of the statute it is provided that if the assailant shall cause any person bodily injury, with the same intent, it constitutes a similar crime.”

In the brief of the Attorney General we read:

“It is unfortunate that in the Harris Case the Attorney General failed to call to the attention of the court the more recent West Virginia case of State v. Coontz (1923), 94 W. Va. 59, 117 S. E. 701, in which the West Virginia court had clarified its earlier decision in the Gibson Case. In the Coontz Case the indictment was in the broad form, as it' is in the present case, and the evidence was that the defendant, using his fists, broke the victim’s nose, blackened his eyes, bruised his face, and broke a bone in his cheek—but did not break the external skin.' A conviction under the maiming statute was sustained.

“So, in the present case, the Commonwealth seeks to have this court clarify its earlier decision in the Harris Case in the same manner.”

With all deference, we are of opinion that the main point in the Coontz Case has been overlooked. In that case the indictment charged that the accused “did unlawfully, feloniously, and maliciously stab, cut and wound one W. L. Mason, and caused him bodily injury by means of a blow tüíí/i his fist with intent” etc. (Italics added.) The jury-found the defendant guilty of unlawfully, but not maliciously, injuring and disfiguring the said Mason, as charged in the indictment.

The West Virginia statute, section 9, chapter 144 of the Code, is practically identical with our section 4402 of the Code. In “clarifying” the Gibson Case, Meredith, J., said:

“Gibson was charged specifically with ‘feloniously and maliciously cutting and wounding,’ nothing more, and under the reasoning of the English decisions cited, our conclusions that Gibson’s guilt was neither sufficiently proved nor charged were unquestionably proper.

“Judge Poffenbarger went a step further in his reasoning, however, and it is this step which marks the distinction between that case and the present one, and which point defendant has overlooked. At the bottom of page 550 of 67 W. Va. (68 S. E. 296, 28 L. R. A. (N. S.) 965), we find:

“ ‘Our statute has been broadened somewhat by the use of the terms “or by any other means cause him bodily injury with intent,” etc. Under a proper indictment, any sort of bodily injury, inflicted by any means, with intent to maim, disfigure, or kill, is an offense under this statute, punishable as a malicious or unlawful wounding; but it is not a technical wounding, and an indictment merely for cutting and wounding does not cover it.’ This addition to the statute does not alter the meaning of its original terms. It simply introduces a new offense made up of new elements.’

“In other words, Judge Poffenbarger foresaw the case at bar. The indictment of the defendant Coontz is not limited to mere cutting and wounding; it avers in addition, ‘caused him bodily injury by means of a blow with his fist;’ it is within the scope of the statutory expression, ‘or by any means cause- him bodily injury,’ etc., and is the proper indictment referred to by Judge Poffenbarger. This answers sufficiently the contention that the use of an artificial weapon must be alleged and proved. It specifies the means by which the injury was caused, as is stated in point 4 of the syllabus in the Gibson Case. ‘An indictment for maliciously or unlawfully causing bodily injury otherwise than by shooting, stabbing, cutting, or wounding should specify the means by which the injury was caused,’ and the proof adduced was sufficient to support the charge. Such is not only the proper construction of section 9, chapter 144, Code, but under the modern English statute, 24 & 25 Viet. c. 100, a similar act, the ruling of this case is equally proper in that jurisdiction. See Bishop, Statutory Crimes, (3rd Ed.) 3 T4-”

It is to be observed that in the Gibson Case, supra, and in the Harris Case, supra, the drawing of a “proper indictment” is emphasized. Both opinions draw the distinction between a “wound” and an “injury.”

Webster’s International Dictionary defines an “injury” as a “detriment, hurt, loss, impairment,” while “to wound” is thus defined: “to hurt by violence, to produce a breach or separation of parts, as by a cut, blow or the like.”

If a wound, as contended, includes any injury, then there is no reason for the language in the statute “or by any means cause him bodily injury with intent,” etc.

To “shoot, stab, cut or wound,” under the statute comprise distinct offenses, and to cause bodily injury is likewise a distinct offense. For instance, one who has sprained his ankle has in no sense received a wound.

As stated in the Harris Case, supra, and in the Coontz Case, supra, when an indictment charges bodily injury, the means by which the injury is caused should be set forth. This has been the rule of law in this Commonwealth since our decision in Jones v. Commonwealth, 87 Va. 63, 12 S. E. 226. In that case, decided in 1890, Judge Lewis gives the form for a proper indictment when bodily injury is relied upon.

In the case at bar, all that was necessary to allege in the indictment was that Garrett Johnson in and upon one R. W. McAllister, then and there being, an assault did make and with his fist him, the said R. W. McAllister, did feloniously, maliciously and unlawfully beat, ill treat and cause him bodily injury, to-wit, did break two ribs of said McAllister, with intent in so doing him the said McAllister to maim, disfigure, disable and loll, against the peace and dignity of the Commonwealth.

The assignment of error is well founded.

There are other assignments of error dealing with the question of malice and the question of the intent to- maim, disfigure, disable and kill.

These assignments are without merit for the reason that they are controlled by our decisions in Roark v. Commonwealth, 182 Va. 244, 28 S. E. (2d) 693, and Shackelford v. Commonwealth, 183 Va. 423, 32 S. E. (2d) 682.

For the reasons stated,' the judgment is reversed and the case is remanded to the trial court with direction to permit an amendment to the indictment in conformity with the provisions of section 4878 of the Code.

Reversed and remanded.