Johnson v. Commonwealth
Decision Date | 08 October 1945 |
Citation | 184 Va. 409,35 S.E.2d 594 |
Parties | JOHNSON. v. COMMONWEALTH. |
Court | Virginia Supreme Court |
Error to Circuit Court, Nelson County; Edward Meeks, Judge.
Garrett Johnson was convicted of malicious wounding, and he brings error.
Reversed.
Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.
William Kinckle Allen, of Amherst, for plaintiff in error.
Abram P. Staples, Atty. Gen, and M. Ray Doubles, Asst. Atty. Gen, for Commonwealth.
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. McAllister, bodily injury with intent him, the said R. W. McAllister, 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:
It is assigned as error that: "There has been no wounding of the prosecutor as con-templated by the maiming statute, section 4402 of the Code."
Section 4402 reads:
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 President 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, President Prentis said:
In the brief of the Attorney General we read:
With all deference, we are of opinion that the main point in the Coontz case has been overlooked. In that case [94 W.Va. 59, 117 S.E. 702] 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...
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