Banovitch v. Com.

• Decision Date: 08 September 1954
• Parties: JOSEPH E. BANOVITCH v. COMMONWEALTH OF VIRGINIA
• Court: Virginia Supreme Court

Page 369

83 S.E.2d 369

196 Va. 210

JOSEPH E. BANOVITCH v. COMMONWEALTH OF VIRGINIA.

Supreme Court of Appeals of Virginia

September 8, 1954.

W. E. Neblett and Lynwood H. Wilson, for the plaintiff in error.

J. Lindsay Almond, Jr., Attorney General and C. F. Hicks, Assistant Attorney General, for the Commonwealth.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

An indictment under the maiming statute, § 18-70 of the Code, was returned against the defendant, Joseph E. Banovitch, charging that in July, 1952, he unlawfully made an assault on Lucy L. Hazlewood and by the use of certain salves and medicines unlawfully caused her bodily injury, with the intent to maim and disfigure her. On his trial to a jury he was found guilty of unlawful wounding 'as charged in the within indictment,' his punishment fixed at five years in the penitentiary and he was sentenced accordingly. On this appeal he alleges that error was committed in the admission of evidence, in the argument of the Commonwealth's attorney and in holding the evidence to be sufficient to sustain the verdict.

The facts now to be recited are taken from the evidence introduced by the Commonwealth, including statements made by the defendant to officers of the law. The defendant offered no evidence. While the alleged offense occurred in the home of Miss Hazlewood's parents, the only members of her family who testified were a sister and her husband who lived on adjoining property.

Defendant claimed to be a medical doctor but was not licensed to practice in Virginia. He was born in Germany and was 75 years old at the time he was indicted. He stated to the officers that he attended schools and studied medicine in Germany and graduated from the University of Vienna, Austria, but with what degree does not appear. When Miss Hazlewood first knew him he lived at Crewe, in Nottoway county, Virginia, where he made, advertised and sold, among other things, a medicine for the treatment of cancer under a registered trademark. The cancer remedy consisted of three salves which he called Black Devil No. 1, No. 2 Green and No. 3 Brown. An advertisement or label was introduced showing a picture of defendant, stating the contents of the salves and giving directions for their use. The printed directions were these: 'Put Cancer Ointment (No. 1) on a piece of bandage 1/4 of an inch thick, size to cover the cancer. Leave it on for 24 hours. Remove and apply Green Salve (No. 2) in the same manner every 24 hours until the cancer starts to run, then apply 3 or 4 times a day until the cancer drops out. Now apply Healing Salve (No. 3) on bandage 3 or 4 times a day. The oftener you dress the sore the quicker it will heal.'

Miss Hazlewood was a college and university graduate who had taught school for several years and had been in the mercantile business with her father for about 12 years. She lived with her parents in Kenbridge, Lunenburg county, adjoining Nottoway county, where the defendant lived. She was 50 years old at the time of the offense charged in the indictment. She first met the defendant about Christmas time, 1951, when she and a sister, Mrs. Gee, were taken to see him by their brother-in-law, J. H. Revere. Mrs. Gee, who also bought medicine from defendant, did not testify.

Mrs. Revere, another sister, testified that it was her impression that on that occasion the defendant gave Miss Hazlewood some medicine for arthritis. After that meeting the two sisters, Mrs. Gee and Miss Hazlewood, went quite often to defendant's home. Mrs. Revere went with them occasionally and bought some vitamins.

In February or March, 1952, Miss Hazlewood visited the defendant and told him she had cancer of the womb. He stated to the officers that she also then had cancer of the rectum. He gave her the three types of salves for these troubles. About the last of June or first of July, 1952, Miss Hazlewood went to defendant's home and told him, according to his statement to the officers, that she had cancer of the nose. Her father and possibly one of her sisters came for the defendant and brought him to Kenbridge to treat her for that trouble, which he also diagnosed as cancer. His method of diagnosis, he said, was to apply the Black Devil No. 1 salve and if that caused itching then cancer was present.

This treatment lasted five or six weeks, during which period the defendant lived for the most part in the Hazlewood home and was in Miss Hazlewood's room often, along with members of her family. Some three weeks after the treatments began the defendant and Miss Hazlewood became engaged to be married. He gave her an engagement ring. Mrs. Revere testified that Miss Hazlewood refused the ring when first offered but told her afterwards, in July or August, 'If I do not accept the ring, then I will die of cancer. He will not continue to treat me. ' However, Miss Hazlewood continued to wear the ring for some seven months after the alleged offense, and in March, 1953, the defendant told the officers they expected to get married the following month. Miss Hazlewood died on May 19, 1953, after the indictment but before the trial, from a cause not shown in the record.

Defendant's description of the treatment, as made to the officers, was that he first put the Black Devil No. 1 salve on Miss Hazlewood's nose and kept it on for eight hours; then he put on the No. 2 Green salve and when the cancer came out he put the No. 3 Brown salve on, and when it healed part of her nose was missing. Her sister said her nose was practically gone. He told the officers that in a case of cancer his salve would cause the diseased part to come off and that part of Miss Hazlewood's nose had come off because it was diseased. The treatments were very painful and evidence of her suffering could be heard next door. The defendant gave her only a mixture of beer and whiskey to ease the pain.

An analysis of the salves used by the defendant on Miss Hazlewood showed that Black Devil No. 1 contained a large amount of zinc chloride, a strong corrosive chemical 'that would eat tissue, flesh or even metal. ' Its common use is as a flux to clean metal prior to soldering. No. 2 Green consisted of animal fat and wax. No. 3 Brown contained carbolic acid, also a corrosive when in pure form. When the No. 1 salve was applied for less than a minute to the arm of the toxicologist who made the analysis it caused a stinging, itching sensation and produced a welt. He testified, however, that he had heard that zinc chloride was sometimes used in the treatment of cancer. The medical testimony was that the diagnosis of cancer by the use of this salve was impossible and the treatment of cancer by the application of these salves was not approved or recognized in the medical profession.

On November 13, 1952, the defendant presented to the Bank of Lunenburg and cashed a check drawn by Miss Hazlewood and payable to him in the sum of $3,384.36, which was all the money she had in her checking account at that time. There was no explanation of this check in the evidence.

On February 9, 1953, the defendant went with Miss Hazlewood to a hospital in Oxford, North Carolina, where defendant stated he was her family physician and she was admitted as his patient. The evidence does not disclose the purpose of this hospitalization but defendant there stated that he had been treating Miss Hazlewood since July, 1952, and had applied a salve to her face to remove a cancer. He described his method of diagnosing cancer in the same way as he had stated it to the officers. Miss Hazlewood stayed in the hospital until in March, 1953. The defendant stayed with her during that time and visited her at her home several times afterwards.

Microscopic examination of tissue taken from the nose of Miss Hazlewood after her death disclosed no evidence of any malignancy. Miss Hazlewood's sister testified that when the defendant began the treatment on July 2 there were no marks, discloring, moles or anything of that nature on her nose or face and nothing to indicate there was anything wrong with her.

At the conclusion of the evidence the court instructed the jury without objection that if the defendant applied the salve to Miss Hazlewood with a corrupt and evil intent of maiming or disfiguring her permanently, and not as a cure for some disease he may have thought she had, then he was guilty of unlawful maiming as charged in the indictment. The jury were also told that the Commonwealth must prove beyond a reasonable doubt that the defendant made an assault upon Miss Hazlewood 'with the particular intent to maim or permanently disfigure her before he can be found guilty of unlawful wounding as charged in the indictment.'

These instructions became the law of the case and they consist with the law of the land. Thus in Thacker v. Commonwealth, 134 Va. 767, 770, 114 S.E. 504, 505, it is said:

'When a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found as a matter of fact before a conviction can be had; and no intent in law or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter.'

Section 18-70 of the Code, the maiming statute, provides that if any person maliciously or unlawfully shoot, stab, cut or wound another, or by any means cause him bodily injury, with the intent to maim, disfigure, disable or kill him, he shall be punished as the statute prescribes. In Harris v. Commonwealth, 150 Va. 580, 585, 142 S.E. 354, 355, it is said: '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.'

Proof of the specific intent is necessary to a conviction under the statute. Hay v....