Canada v. Commonwealth

• Decision Date: 27 November 1872
• Citation: 63 Va. 899
• Parties: CANADA v. COMMONWEALTH.
• Court: Virginia Supreme Court

63 Va. 899

CANADA v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 27, 1872

Absent, CHRISTIAN and BOULDIN, JS.^[a1]

C is indicted for feloniously and maliciously cutting, striking wounding, & c., H, with intent to maim, disfigure disable and kill. The indictment charges that C made an assault upon H, and feloniously and maliciously, & c. The jury find " the prisoner not guilty of the malicious cutting and wounding as charged in the within indictment; but guilty of an assault and battery as charged in the within indictment, and assess his fine at $500. HELD:

1. This is an acquittal of the prisoner of the felony charged whether of the " malicious" or " unlawful" cutting, & c., with intent to maim, &amp c.; and it is a conviction for the misdemeanor of assault and battery.

2. Though the indictment only uses the word " malicious," the jury might have found the prisoner guilty of the " unlawful" cutting, & c., with intent, & c.

3. Though the indictment is for a felony, the assault and battery being charged in it, the prisoner may be acquitted of the felony, and convicted of the misdemeanor; and the jury may assess a pecuniary fine upon him, but not imprisonment.

4. Upon such a conviction the court may sentence the prisoner to be imprisoned in the county jail, in addition to the pecuniary fine.

In January 1872, John M. Canada was indicted in the County court of Halifax for the feloniously and maliciously cutting, stabbing and striking J. H. High, with intent to maim, disfigure, disable and kill him. The jury found him not guilty of the malicious cutting and wounding, but guilty of an assault and battery, and assessed his fine at five hundred dollars. And the court rendered a judgment against him for the fine, and costs; and that he be imprisoned in the county jail for six months. The prisoner took two exceptions to rulings of the court; and carried the case by writ of error to the Circuit court of Halifax county; where the judgment was affirmed. He thereupon applied to a judge of this court for a writ of error, which was awarded. The case is fully stated by Judge Moncure in his opinion.

E. Barksdale and J. Alfred Jones, for the appellant.

The Attorney-General, for the Commonwealth.

MONCURE, P.

In January 1872, John M. Canada was indicted in the County court of Halifax for feloniously and maliciously inflicting bodily injuries on J. H. High, with intent to maim, disfigure, disable and kill. There were three counts in the indictment, charging the injuries in a different manner--as 1st. By cutting; 2ndly. By wounding; and 3dly. By beating, striking, wounding and cutting " him, the said J. H. High, with a certain wagon spoke," whereby " he, the said John M. Canada, by means of the blows, cuts and wounds inflicted with the said wagon spoke," " feloniously and maliciously did cause the said J. H. High great bodily injury." In each of the counts the same technical words of description of the offence are used, and the only words so used are " " feloniously and maliciously," and in each of them the act is charged to have been done " with intent to maim, disfigure, disable and kill." In the first two counts the manner of the injury is described by one only of the acts enumerated in the statute creating the offence, the word used in the first being the word " " " cut," and that used in the second being the word " wound." In the last count the manner of inflicting the bodily injury is more minutely and specifically stated. At the commencement of each of the counts, as is usual, if not necessary, in every indictment for an offence involving personal violence, it is charged that the accused " did make an assault" upon the party injured.

Afterwards, to wit: in February 1872, the accused having been arraigned upon the said indictment, pleaded not guilty thereto, and was tried by a jury, which found a verdict in the following words: " We, the jury, find the prisoner not guilty of the malicious cutting and wounding, as charged in the within indictment, but guilty of an assault and battery, as charged in the within indictment, and assess his fine at five hundred dollars." Thereupon the prisoner moved the court to arrest the judgment, because the verdict was insufficient. But the court overruled the said motion, and gave judgment against the prisoner for the said fine and the costs of the prosecution; and also that he be imprisoned in the county jail of said county for the period of six months.

Two bills of exception were taken by the accused to the said judgment, and made a part of the record. In the first it is stated " that upon the trial of the cause, the court instructed the jury that, upon the indictment, they could find the prisoner guilty of the offence therein charged, or done maliciously, with intent to maim, disfigure, disable or kill, and punish him by confinement in the penitentiary not less than one nor more than ten years; or if they believed the acts therein charged were done unlawfully, but not maliciously, with the intent aforesaid, the accused could, at their discretion, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars; or they might find him guilty of an assault and battery, and fine him not exceeding five hundred dollars, and imprisonment at the discretion of the court. And after the jury had rendered their verdict, the accused moved the court to arrest the judgment, on the ground that according to the terms of the statute under which the indictment was found and the accused tried, to wit: the 9th section of chapter 191 of the Code of 1860, the punishment prescribed for a white person found guilty of unlawfully, but not maliciously, committing the offences mentioned in said section, is confinement in the penitentiary not less than one nor more than five years, or confinement in the jail not exceeding twelve months, and a fine not exceeding five hundred dollars, at the discretion of the jury, and not a fine alone without imprisonment, as was found by the verdict of the jury." But the court overruled the motion in arrest of judgment; and the accused excepted.

In the second bill of exceptions it is stated " that upon the trial of this cause, after the jury had rendered their verdict, the court ordered that the prisoner, who is a white man, be confined in the county jail for the term of six months in addition to the punishment imposed by the jury. And thereupon the prisoner, by counsel, moved the court in arrest of judgment, on the ground that, according to the provisions of the statute" aforesaid, " the punishment prescribed for a white person found guilty of unlawfully, but not maliciously, committing the offence mentioned in said section, is confinement in the penitentiary not less than one nor more than five years, or confinement in jail not exceeding twelve months and a fine not exceeding five hundred dollars, at the discretion of the jury, and not of the court." But the court overruled the said last mentioned motion also; and the accused again excepted.

To the said judgment of the said County court the accused obtained a writ of error from the judge of the Circuit court of said county; by which last mentioned court the said judgment was affirmed. And to the said judgment of affirmance the accused obtained a writ of error from a judge of this court; which is the case we now have to dispose of.

The statute under which the accused was indicted is to be found in the Code, page 784, ch. 191, sec. 9, which declares that " if any free 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 where 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, at the discretion of the jury," & c., " either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding one year, and fined not exceeding five hundred dollars."

This statute was taken, substantially, from the act of 1847-8, called the " " Criminal Code," ch. 3, sec. 10, Acts of Assembly 1847-8, p. 96, the said tenth section of the said act being a substitute for sections 1 and 2 of chapter 156 of the Code of 1819, entitled " An act to reduce into one act the several acts against malicious or unlawful shooting, stabbing, maiming and disfiguring." 1 R. C. p. 582. Section 1 of the said chapter was against " unlawful shooting, stabbing, maiming and disfiguring; " and section 2 was against " malicious shooting, stabbing, maiming and disfiguring."

The invariable practice in prosecutions under the act of 1819 was to insert two counts in the indictment, one charging the offence as having been committed " unlawfully, " in violation of the first section, and the other charging the offence as having been committed " maliciously, " in violation of the second section of the act. And if the jury considered the accused guilty of committing the act charged " unlawfully," but not " " maliciously," they would find him guilty under the first count, and not guilty under the second.

By the present Code, ch. 208, § 29, p. 838, it is provided that " on any indictment for maliciously shooting, stabbing cutting or wounding a person, or by any means causing him bodily injury, with intent to kill him, the jury may find the accused not guilty of the offence charged, but guilty of maliciously doing such act with intent to maim, disfigure or disable, or of unlawfully doing it with intent to maim, disfigure, disable or kill...