Johnson v. Commonwealth

• Decision Date: 08 October 1945
• Docket Number: Record No. 3015.
• Court: Virginia Supreme Court
• Parties: GARRETT JOHNSON v. COMMONWEALTH OF VIRGINIA.

Page 409

184 Va. 409

GARRETT JOHNSON v. COMMONWEALTH OF VIRGINIA.

Record No. 3015.

Supreme Court of Virginia, Richmond.

October 8, 1945.

Present, All the Justices.

1. APPEAL AND ERROR — Conflict in Evidence — Effect of Verdict. — Where a conflict in evidence has been resolved in favor of the Commonwealth by the verdict of the jury, it is unnecessary for the Supreme Court of Appeals to review the evidence in its entirety.

2. MAYHEM — Meaning of "Wound." — Under the maiming act, section 4402 of the Code of 1942, a "wound" is a breach of the skin, or of the skin and flesh, produced by external violence. Without such parting of the skin there can be no wounding.

3. MAYHEM — Meaning of "Wound." — Under the maiming act, section 4402 of the Code of 1942, a disruption of the internal skin, for example, within the mouth, or the membrane lining the urethra, will suffice to constitute a wound.

4. MAYHEM — Weapon Causing Wound. — Under the maiming act, section 4402 of the Code of 1942, any weapon with which the skin is broken is sufficient to bring the act within the statute, though blunt, provided such weapon is other than those with which the human body is naturally provided.

5. MAYHEM — Distinct Offenses under Statute. — Under the maiming act, section 4402 of the Code of 1942, to "shoot, stab, cut or wound," under the statute comprise distinct offenses, and to cause bodily injury is likewise a distinct offense.

6. MAYHEM — Indictment Must Show Means by Which Injury Caused. — When an indictment charges bodily injury, the means by which the injury is caused should be set forth.

7. MAYHEM — Wound within Meaning of Statute — Fracture of Ribs — Case at Bar. — In the instant case, a prosecution for malicious wounding, the evidence showed that as a result of an assault the complaining witness received two broken ribs, and accused assigned as error the fact that this injury did not constitute a wounding as contemplated by the maiming statute and charged in the indictment.

Held: That the assignment of error was well founded.

Error to a judgment of the Circuit Court of Nelson county. Hon. Edward Meeks, judge presiding.

The opinion states the case.

William Kinckle Allen, for the plaintiff in error.

Abram P. Staples, Attorney General, and M. Ray Doubles, Assistant Attorney General, for the Commonwealth.

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. 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:

"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 Jamerson, 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, McAllister 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, or 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 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 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:

2, 3 "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 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. 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...