State v. Creed Coontz.
| Decision Date | 22 May 1923 |
| Docket Number | No. 4534.,4534. |
| Citation | 94 W.Va. 59 |
| Parties | State v. Creed Coontz. |
| Court | West Virginia Supreme Court |
Under section 9, chapter 144, Barnes' Code, 1923, an indictment which charges that the defendant did unlawfully, feloniously and maliciously stab, cut and wound one M. and caused him bodily injury by means of a blow with his fist, with intent him, the said M. then and there to maim, disable and kill, is sufficient, as a charge of technical "wounding", or a charge of causing bodily injury, with intent to maim,
disable, and kill. (p. 63).
Quash, Because Failing to Specify Instrument With Which Injury Inflicted.
As an indictment for malicious stabbing, cutting and wounding, with intent to maim, disable and kill, it is not subject to demurrer or motion to quash because it fails to specify the instrument with which that injury was inflicted. (P. 64).
ject to Same Punishment.
As an indictment for causing bodily injury with intent to maim, disable and kill, it is sufficient to allege that such injury was inflicted by means of a blow with defendant's fist; the grade of the offense so charged is the same as a technical stabbing, cutting and wounding and is subject to the same punishment. (p. 64).
4. Criminal Law Under Conviction of Unlawfully. But Not Ma-
liciously, Causing Bodily Injury, Accused Cannot be Fined, Except Where Sentenced to Jail.
Case Remanded for Proper Judgment.
Where defendant has been convicted of unlawfully but not maliciously causing bodily injury to another and the court has erroneously sentenced him to a term in the penitentiary and also to pay a fine, this court on writ of error will reverse the judgment, and if the verdict be sustained, will remand the case for proper judgment to be entered by the trial court. (p. 66).
Error to Circuit Court, Barbour County.
Creed Coontz was convicted of unlawfully injuring and disfiguring another, and he brings error. Verdict sustained.
Reversed and remanded.
Wm. T. George, for plaintiff in error. E. T. England, Attorney General, and R. Dennis Steed, Assistant Attorney General, for the State.
Defendant was tried under an indictment which charged that on November 1, 1920, he "did unlawfully, feloniously and maliciously stab, cut and wound one W. L. Mason, and caused him bodily injury by means of a blow with his fist, with intent him, the said W. L. Mason, then and there to maim, disable and kill, against the peace and dignity of the state." The jury found the defendant guilty of unlawfully but not maliciously injuring and disfiguring the said Mason, as charged in the indictment, and the court sentenced him to confinement in the penitentiary for 18 months and to pay a fine of $100.00. Defendant complains both of the verdict and the sentence.
As will later be shown, the defenses principally relied on do not involve the issues of fact raised in the proof, and it is therefore unnecessary for us to review the details of the evidence. In order to shed some light on the merits of the case, however, a brief summary of the record is not improper. Mason, the prosecuting witness, and defendant lived near Belington, Barbour County, and though it does not appear in what other business they were engaged, it seems that a few days prior to the altercation here involved, each of them purchased several rows of shocked corn at a sale conducted by one Sturms, the owner of the land on which it was grown.
The trouble occurred on Monday. On the Friday or Saturday preceding, Mason went to the Sturms field to shuck the corn which he had bought, but in doing so, crossed over, he claims by mistake, into one of the adjoining rows, which row happened to have been purchased by defendant. Mason shucked four shocks in that row. He was soon apprised of his error, however, by a son of Mr. Sturms, whereupon he covered over the shucked corn with the fodder and left it there, and asked Sturms to explain the mistake to defendant, with whom Mason was not acquainted. On Monday, Mason returned to the field and noticed that four of his own shocks were missing. He had previously employed William Armstrong to do his hauling, and seeing Armstrong approaching with his team, Mason walked over to him for the purpose of employing him again. Defendant was assisting Armstrong in his hauling. During the conversation Mason mentioned the disappearance of his four shocks, whereupon defendant admitted taking them in retaliation for those of his own shucked by Mason. From this point the stories are conflicting. Mason claims he attempted to make an explanation and an apology for his mistake in shucking the wrong corn, and that defendant would not listen and finally knocked him down with his fist. Defendant and Armstrong, the only other witness, aver that Mason struck the first blow and was on the point of striking defendant with a rock, which attack defendant so effectively prevented. These versions of the affair having been passed upon by the jury, we are not called upon to say which contention was the true one, but certain features of the record tend to show that the verdict of guilty was not unjustified. For reasons not sufficiently explained, defendant left the community immediately after the trouble and did not return for some time. Furthermore, a short time after the altercation, Armstrong swore out a warrant before a justice charging defendant with assault and battery, though he now pictures Mason as the aggressor in the affair. He claims he would have had the warrant issued for Mason had he known the latter's initials at the time. Defendant was never tried on that charge.
Mason's injuries were serious. He received a badly broken nose, his eyes were blacked, his face was severely bruised, and one of the physicians who testified stated that the process bone in the cheek was broken from the upper part of the jaw. He was confined to a hospital for four days. For some time after the blow he suffered considerably from hemorrhages of the nose, indicating, as the doctor explained, that "the membrane was broken in there."
Defendant, of course, points out the testimony tending to show the provocation for his striking Mason, but relies chiefly upon two points, claimed by him to be reversible error:
First. It is charged, and correctly so, that the indictment is founded upon the provisions of section 9, chapter 144, Code, 1923; and it is argued that that section only applies to those cases in which the accused makes use of some weapon in the commission of the offense and since it was neither charged nor proved that any weapon was used here, defendant was not guilty of any offense contemplated by the act.
Second. It is contended that though this court should find that the jury arrived at a proper verdict, nevertheless the sentence of $100.00 fine in addition to the penitentiary sentence was error, under section 9, chapter 144, Code.
The first contention of defendant arises, both upon his motion to quash the indictment, and upon his objection to State's instructions Nos. 1 and 2. Those instructions told the jury that if they believed beyond a reasonable doubt that the defendant committed the crime as alleged in the indictment they could find him: (1) guilty as charged therein, (2) guilty of unlawfully, but not maliciously, committing the offense, (3) guilty of assault and battery, or, (4) not guilty. These objections go to the very heart of defendant's position in the case.
In urging that no offense was committed under section 9, chapter 144, Code, defendant says that he relies upon the particular language of that section. It reads:
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