Jones v. Commonwealth

• Citation: 184 Va. 679,36 S.E.2d 571
• Parties: JONES. v. COMMONWEALTH.
• Decision Date: 14 January 1946
• Court: Supreme Court of Virginia

36 S.E.2d 571

184 Va. 679

JONES.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Jan. 14, 1946.

Error to Circuit Court, Halifax County; G. E. Mitchell, Jr., Judge.

Lieutenant Jones was convicted of an offense and he brings error.

Reversed and remanded for new trial.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Thomas H. Howerton, of South Boston, for plaintiff in error.

Abram P. Staples, Atty. Gen., and V. P. Randolph, Jr., Asst. Atty. Gen., for Commonwealth.

CAMPBELL, Chief Justice.

The indictment in this case, pursuant to the provisions of section 4402 of the Code, charged that the defendant, Lieutenant Jones, armed with a knife, feloniously and maliciously did cut and wound one L. R. Wood with intent to maim, disfigure, disable and kill.

There was a trial by jury which returned this verdict: "We the jury find the accused guilty of malicious assault, and fixthe punishment at eight (8) years in the penitentiary." (Italics added.)

Upon this verdict the court pronounced judgment.

Section 4402 of the Code provides: "If any person maliciously shoot, stab, cut, or wound any person * * * he shall * * * be punished by confinement in the penitentiary not less than one nor more than ten years * * *."

The fundamental question is, Does the verdict of the jury find the accused guilty of any of the crimes set forth in section 4402 of the Code?

That section clearly indicates that before an accused can be guilty of a violation thereof, he must shoot, stab, cut or wound a person or by other means cause him bodily injury.

Section 4758 of Michie's Code reads as follows: "Offenses are either felonies or misdemeanors. Such offenses as are punishable with death or confinement in the penitentiary are felonies; all other offenses are misdemeanors."

When we examine the verdict, we are unable to determine whether the jury intended to find the defendant guilty of a felony or a misdemeanor. However, when we look to the judgment, we must conclude that he has been sentenced to the penitentiary for the commission of a felony.

The question then arises, Is an assault a felony or a misdemeanor? In either event, is it punishable under the provisions of section 4402, supra? Answering the first question, there can be no doubt that an assault is a common-law offense and is punishable as a misdemeanor.

Much confusion has arisen, due to the failure of courts and counsel to draw a distinction between an assault and a battery.

In Minor's Synopsis of the Law of Crimes and Punishments, page 76, an assault is thus defined:

"An assault is any attempt or offer with force or violence to do a corporal hurt to another, whether from malice or from wantonness, as by striking at him, or even holding up one's fist at him in a threatening or insulting manner, or pointing a weapon at him within reach. (3 Bl.Com. 120; 1 East.P.C. 406; 1 Whart.Cr.L. (8th Ed.) 608 & seq.; 1 Russ.Cr. 604.)"

"Battery is the actual infliction of corporal hurt on another (e.g., the leasttouching of another's person), wilfully or in anger, whether by the party's own hand, or by some means set in motion by him. (3 Bl.Com. 120; 1 East.P.C. 405; 1 Russ. Cr. 604-'5.)" Id. 77.

Answering the second question, the answer must be in the negative, for, when we examine the statute, we fail to discover the alleged crime of malicious assault.

The verdict returned in the case at bar is analogous to the verdict considered by Moncure, P., in Randall v. Commonwealth, 24 Grat 644, 65 Va. 644. The conclusion reached in that case is fortified and approved by Prentis, C. J, in Williams v. Commonwealth, 153 Va. 987, 989, 151 S. E. 151.

In the Randall Case, supra, we read: "The offence for which the plaintiff in error was intended to be prosecuted in this case is the offence declared by the Code of 1860, chapter 191, section 9, concerning malicious and unlawful shooting, stabbing, &c. The jury, by their verdict, found the prisoner 'guilty of malicious shooting, ' and fixed his term of imprisonment in the penitentiary at five years, to which he was accordingly sentenced. And he applied for and obtained from this court a writ of error to the judgment. In his petition for the writ he assigned sundry errors in the said judgment, one of which is, that the verdict found...