Bryant v. Commonwealth

• Decision Date: 25 April 1949
• Court: Virginia Supreme Court
• Parties: BRYANT et al. v. COMMONWEALTH.

53 S.E.2d 54

189 Va. 310

BRYANT et al.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

April 25, 1949.

Error to Circuit Court, Buckingham County; Joel W. Flood, Judge.

Wilbur Bryant and Leonard Bryant were convicted under the maiming act and they bring error.

Judgment affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

John B. Boatwright, of Buckingham, and A. L. Pitts, Jr., of Dillwyn, for plaintiffs in error.

J. Lindsay Almond, Jr., Arty. Gen., and Ballard Baker, Asst. Atty. Gen., for the Commonwealth.

HUDGINS, Chief Justice.

On December 13, 1947, Wilbur and Leonard Bryant, brothers, hired E. J. Howell, in Charlottesville, to take them in his taxi-cab to the home of their sister, who lived in Buckingham county. Both of the Bryants were drinking and were "pretty full." Between 7:30 and 8:00 p. m. they had the taxi-cab stop in Buckingham county about seven miles south of Scottsville, at a small store and filling station operated by Andy Smith. There were no lights in the station. The Bryant boys called Smith from his living quarters in the rear of the small store and grabbed him, beat him with their fists, kicked him, carried him down the road about two miles, brought him back and kicked him out of the taxicab. The brothers were jointly indicted, jointly tried, and convicted under the maiming act, Sec. 4402 of the Code, and each sentenced to confinement in the penitentiary for three years.

The first assignment of error is based on the refusal of the trial court to sustain defendants' motion to quash the indictment.

The indictment contains three counts. The first count charges defendants jointly with the assault upon D. A. Smith "and with their fists, and feet incased in shoes, him the said D. A. Smith, did unlawfully, feloniously and maliciously beat, illtreat and cause bodily injuries, to-wit: Did beat and kick the said D. A. Smith about the face, body and limbs, and did thereby cause internal injuries, bleeding of the nose, mouth and face, of the said D. A. Smith, with intent in so doing him the said D. A. Smith then and there to maim, disfigure, disable and kill against the peace and dignity of the Commonwealth * * *." The second count, with appropriate change in language, charges Leonard Bryant as principal and Wilbur Bryant as present aiding and abetting in the commission of the offense. The third count charges Wilbur Bryant as principal with Leonard Bryant present aiding and abetting.

The cavalier manner in which defendants argued the question, both in the lower court and in this court, reveals their lack of faith in their contention. They assigned no reason in the lower court for their conclusion, but simply said that the indictment should be quashed because it was "insufficient in law." They made no attempt to comply with Rule 22.

In this court they state their position in one paragraph thus:

"Bill of Exception No. 1 deals with the indictment which contains three counts, very long and involved and charges an assault under the maiming act and charges these petitioners with an attempt to kill D. A. Smith, commonly called Andy Smith. There is also the charge of conspiracy."

A casual reading of the indictment shows that it charged neither an attempt to kill nor a conspiracy. It is stated in the indictment that defendants feloniously, unlawfully and maliciously inflicted bodily injuries with their feet and fists upon D. A. Smith with the intent to maim, disfigure, disable and kill. It describes the injuries, the means by which, and the intent with which, they were inflicted. The draftsman studiously avoided the criticism made to an indictment under this act by Chief Justice Prentis, in Harris v. Commonwealth, 150 Va. 580, 142 S.E. 354, 355, 58 A. L.R. 1316. There the indictment omitted all reference to bodily injuries, as to which it was said:

"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. This indictment is too narrow in its terms to include as a felony the bruise which was in fact inflicted upon Collins by the accused. If the indictment had also charged that the assault and bodily injury were done maliciously with the felonious intent to maim, etc., the evidence would have been sufficient to support the conviction of felony."

This form of indictment was approved in Williams v. Commonwealth, 153 Va. 987, 151 S.E. 151, Johnson v. Commonwealth, 184 Va. 409, 35 S.E.2d 594, and Dawkins v. Commonwealth, 186 Va. 55, 41 S.E.2d 500.

Defendants' second assignment of error is grounded on the refusal of the trial court to compel the Commonwealth to elect on which one of the three counts it would prosecute.

Where an indictment charges different felonies in separate counts the prosecution may be compelled to elect if it appears that the accused would be put to a disadvantage in presenting his defense, or that the minds of the jury might be confused or distracted from proper consideration of the evidence on the main issues.

Whether the Commonwealth should be compelled to elect is ordinarily within the sound judicial discretion of the trial judge, whose decision will not be reversed on appeal unless it appears that the rights of the accused may have been adversely affected. Michie's Digest of Virginia & West Virginia Reports Volume 5, Indictments, Informations and Presentments, sec. 66, etc.

The present indictment contains three counts pertaining to the same offense. The only difference is that one count charges both defendants with inflicting the bodily injuries, and the other two charge one of the defendants as principal and the other as an aider and abettor.

In King v. Commonwealth, 165 Va. 850, 183 S.E. 173, we held that an indictment may contain any number of counts charging the commission of a single offense stated in different ways so as to meet the various phases of proof that might be offered.

Defendants' third contention is that temporary bodily injuries made with weaponswith which a person is endowed by nature --in this instance, the feet and fists--will not sustain a conviction of a felony under the maiming act.

The concept of mayhem at common law was forcibly and violently depriving another of the use of such members of the body as might render him less able to defend himself, or to annoy his adversary. Professor Minor, in his Synopsis of the Law of Crimes and Punishment, p. 66, defines mayhem as "such hurt of any part of a man's body whereby he is rendered less able in fighting to defend himself, or to annoy his adversary, e. g., cutting off or disabling his hand or finger, or striking out his eye or front tooth."

The provisions of the maiming statute, Sec. 1402, make acts, which had theretofore been regarded as misdemeanors, felonies where such acts were done with the specific intent to maim, disfigure, disable or kill. The early Virginia decisions, in construing the word "wound" as used in the act, followed its common-law definition. Professor Minor, p. 66 of Minor's Synopsis of the Law of Crimes and Punishment, said:

"Wounding is often defined as 'the breaking of the true skin, whether with a sharp or blunt instrument, ' but not bruising; nor breaking bones; nor biting off the nose or a finger, the law contemplating the use of an instrument other than the teeth. The medical definition of a wound, however, which the law now adopts, is, 'a recent solution of continuity in the soft parts.'"

The similarity and the difference between the English maiming act, 9 Geo. IV, chap. 31, sec. 12a, and the Virginia act were noted in Harris v. Commonwealth, supra. There it was suggested that a more comprehensive meaning should be given the word "wound, " but the court in fact did not apply the broader or more modern meaning.

However, in Johnson v. Commonwealth, 184 Va. 409, 35 S.E.2d 594, 599, at least three members of the court expressed the opinion that in the absence of proof tending to show that the true skin was broken, the proof of two broken ribs was sufficient to sustain a conviction of...