State v. Daniel, 11037

• Decision Date: 09 June 1959
• Docket Number: No. 11037,11037
• Citation: 109 S.E.2d 32,144 W.Va. 551
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Ivan DANIEL.

Page 32

109 S.E.2d 32

144 W.Va. 551

STATE of West Virginia v. Ivan DANIEL.

No. 11037.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1959.

Decided June 9, 1959.

Syllabus by the Court

1. An allegation in an indictment under the malicious or unlawful assault statute, (Code 61-2-9), that charges bodily injury by means of a blow with the fist is not sustained by proof that the injury was caused by grabbing the prosecuting witness around the waist and throwing him against the road causing the injury.

2. A verdict in connection with a conviction under the malicious or unlawful assault statute, (Code 61-2-9), should state clearly the offense of which the defendant is found guilty, either by reference to the indictment, if the proof will permit, or by the use of the statutory terms.

D. Grove Moler, Mullens, Fred W. Lokant, Oceana, for plaintiff in error.

W. W. Barron, Atty. Gen., George H. Mitchell, Asst. Atty. Gen., for defendant in error.

BERRY, Judge.

Ivan Daniel, the plaintiff in error, hereinafter referred to as defendant, was indicted in the Circuit Court of Wyoming County, West Virginia, for the statutory offense of malicious and unlawful wounding of one Walter Hinkle, a police officer for the town of Oceana, West Virginia, and causing him bodily injury by means of a blow with his fist, with intent to maim, disable, disfigure and kill. The jury returned a verdict finding the defendant not guilty of malicious wounding but guilty of unlawful wounding. The defendant's motion to set aside the verdict and grant to him a new trial was overruled by the trial court and judgment was entered on the verdict sentencing the defendant to the state penitentiary for a period of not less than one year nor more than five years. Upon second application to this Court, a writ of error and supersedeas was granted to the judgment of the Circuit Court of Wyoming County.

On May 19, 1956, between 8 and 9 o'clock in the evening, the defendant, Ivan Daniel, came into the 'Chatterbox', a restaurant or inn in the Town of Oceana, apparently in an intoxicated condition and accosted Walter Hinkle, the city officer with whom he had had some controversy previous to this occasion. Hinkle, according to a witness in the restaurant, arrested the defendant, took him out of the restaurant and started across the highway to his automobile. Before they reached the officer's car, the defendant jerked his arm loose from the arresting officer, and at the same time either struck him with his fist or pushed him, knocking him onto the highway. Hinkle attempted to get up, and at this time the defendant, Daniel, grabbed him around the waist, doubled him up and slammed his head against the hard surface of the highway, rendering him unconscious, fracturing his skulla nd causing him to be permanently injured. Dr. E. L. Gage of Bluefield, West Virginia, who examined Hinkle, stated that the fracture was a direct one because of the fact that he had a cut in the right occiput or the right back part of the head in connection with it. He also stated that it was a type of fracture that could occur from a contact of the head with a hard flat surface such as the hard surface of a road or of concrete. The cut referred to had been sutured before the examination by Dr. Gage, this apparently having been done by Dr. Ward Wylie of the Wyoming General Hospital, although Dr. Wylie could not testify positively to this fact. Dr. Gage testified that Hinkle was reported as having been unconscious for sixty hours at the Wyoming General Hospital. Dr. Gage further testified at the trial that Hinkle was suffering from retrograde amnesia and had received a permanent injury. From the actions of defendant and the statements attributed to him in this case, the necessary elements of intent and malice were sufficiently proved to support a verdict of malicious wounding if the proof sufficiently conformed to the pleading.

There are several grounds of error assigned by the defendant, but all relate to the principle contention that there was a fatal variance between the pleading and the proof and no valid conviction could be had therefrom. It is the contention of the state that the blow by the fist and the grabbing of the prosecuting witness around the waist and slamming his head against the hard surfaced road was all one transaction.

The statute under which the indictment in this case was brought is found in Code 61-2-9, which reads as follows: '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 where it is otherwise provided, be guilty of a felony, and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall be guilty of a felony, and, upon conviction, shall, in the discretion of the court, 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.' It will be noted that this statute provides for both malicious and unlawful wounding, the only difference between the two being that unlawful wounding is done without malice. It also provides for bodily injury caused by any other means. The indictment under which the defendant was tried reads as follows: 'The Grand Jurors of the State of West Virginia, in and for the County of Wyoming and now attending said Court, upon their oaths present that Ivan Daniel, on the 19th day of May, 1956 and within one year next preceding the finding of this indictment, in the county aforesaid, did unlawfully, feloniously, and maliciously stab, cut, and wound one Walter Hinkle and cause him bodily injury, by means of a blow with his fist, with intent him, the said Walter Hinkle, then and there to maim, disable, disfigure and kill, against the peace and dignity of the State.'

The indictment charges both wounding and bodily injur caused by a blow of the fist. Under the wounding provision of the indictment it is not necessary to specify the instrument with which the wound was inflicted, but the wound must have been inflicted by something other than that with which the body is naturally equipped, and the skin, either externally or internally, must have been broken. However, the provision or charge in the indictment with regard to bodily injury must specify the means by which the injury was caused and it is not necessary for the skin to have been broken in order for a conviction to be sustained under this part of the statute. State v. Gibson, 67 W.Va. 548, 68 S.E. 295 28 L.R.A.,N.S., 965; State v. Coont, 94 W.Va. 59, 117 S.E. 701.

It was held by this Court in the case of State v. Myers, 118 W.Va. 397, 190 S.E. 678, that there was a fatal variance between the pleading and the proof where the allegations of the indictment charged that an assault was made by a knife and...