Summary
holding that statute applies only to statutory offenses and not common law crimes
Summary of this case from Clay v. CommonwealthOpinion
44225 Record No. 810338.
December 4, 1981
Present: All the Justices.
Defendant may be convicted of voluntary manslaughter and also of unlawful wounding under Code Sec. 18.2-53, these convictions arising from a single act of stabbing, both convictions not being barred by Code Sec. 19.2-294 and the defendant not receiving multiple punishments for the same offense under the double jeopardy clause of the Fifth Amendment.
(1) Criminal Procedure — Statutory Construction — Offense Against Two or More Statutes or Ordinances (Code Sec. 19.2-294) — Section Applies Only When Two or More Statutory Offenses are Involved.
(2) Criminal Procedure — Statutory Construction — How Voluntary Manslaughter Punished (Code Sec. 18.2-35) — Voluntary Manslaughter is Common Law Offense, Section Only Fixing Punishment.
(3) Criminal Procedure — Statutory Construction — Offense Against Two or More Statutes or Ordinances (Code Sec. 19.2-294) — Does not Bar Defendant's Conviction for Unlawful Wounding [a statutory offense (Code Sec. 18.2-53) and Voluntary Manslaughter (a common law offense)].
(4) Criminal Procedure — Constitutional Law — Double Jeopardy — Guarantees Against in Fifth Amendment Defined.
(5) Criminal Procedure — Constitutional Law — Double Jeopardy — When Single Trial, Issue is Whether Court Imposed Multiple Punishments for Same Offense.
(6) Criminal Procedure — Constitutional Law — Double Jeopardy — Multiple Punishments for Same Offense — Test — Offenses are to be Examined in Abstract.
(7) Criminal Procedure — Constitutional Law — Double Jeopardy — Multiple Punishments for Same Offense — One Offense Not Lesser Included Within the Other.
(8) Criminal Procedure — Statutory Construction — Shooting, etc., in Committing or Attempting a Felony (Code Sec. 18.2-53) — Purpose — Additional Penalty Intended — Use or Display of Firearm in Committing Felony (Code Sec. 18.2-53.1) — Discussed and Compared.
Defendant was indicted for murder and also for the unlawful shooting, stabbing, cutting or wounding of another in the commission of a felony (Code Sec. 18.253). In a single Jury trial he was convicted of voluntary manslaughter and also of unlawful wounding (Code Sec. 18.2-53). On appeal he contends that because the charges arose from his single act of stabbing his victim, Code Sec. 19.2-294 permits conviction only of one or the other of the offenses. He also contends he was subject to multiple punishments for the same offense in violation of the Double Jeopardy clause of the Fifth Amendment.
1. Code Sec. 19.2-294 applies only when two or more statutory offenses are involved.
2. Code Sec. 18.2-35 merely fixes the punishment for voluntary manslaughter and does not define the offense, voluntary manslaughter being a common law offense.
3. Code Sec. 19.2-294 applying only when two or more statutory offenses are involved, the section thus does not bar defendant's conviction and punishment for unlawful wounding [which is a statutory offense (Code Sec. 18.2-53) and voluntary manslaughter (which is a common law offense)].
4. The constitutional provision concerning double jeopardy in the Fifth Amendment embodies three guarantees: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second prosecution for the same offense after acquittal; and (3) it protects against multiple punishments for the same offense.
5. In the single trial setting, as here, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authority by imposing multiple punishments for the same offense.
6. The question is whether the legislature has provided that two offenses may be published cumulatively and, in determining the legislative intent, the test to be applied is whether each offense requires proof of a fact which the other does not. In applying this test, the two offenses are to be examined in the abstract rather than with reference to the facts of the particular case under review.
7. Here one offense is not lesser included within the other, the offense of murder, one of the charges against defendant, requiring proof of the victim's death, while the charge under Code Sec. 18.2-53 requires proof of a shooting, stabbing, cutting or wounding, the charge of murder not requiring proof of these facts, since murder can be committed by other means. The charges thus qualify as separate offenses.
8. The purpose of Code Sec. 18.2-53 is to deter the use of specific forms of violence and thus lessen the risk of bodily harm to the potential victims of felonious crime. The intent of the legislature was to impose a punishment for the use of such violence in addition to the penalty prescribed for the primary felony even though there is not an express statement of this intent in Code Sec. 18.2-53 as in Code Sec. 18.2-53.1 which expressly punishes separately the use or display of a firearm in the commission of specified felonies.
Appeal from a judgment of the Circuit Court of the City of Suffolk. Hon. James C. Godwin, judge presiding. Affirmed.
John E. Eure, Jr. (Eure and Johnson, on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.
The defendant, James Calvin Blythe, was indicted separately for murder and the unlawful shooting, stabbing, cutting, or wounding of another in the commission of a felony (Code Sec. 18.2-53). In a single jury trial, the defendant was convicted of voluntary manslaughter, with punishment fixed at ten years' imprisonment, and of the wounding charge, with punishment fixed at five years' imprisonment. The trial court imposed the prison terms fixed by the jury and ordered that the defendant serve the sentences consecutively.
The charges against the defendant grew out of a domestic dispute on June 18, 1980, during which the defendant stabbed his mother's boyfriend, Earl Rivers. Medical evidence showed Rivers died from stab wounds to the neck and chest.
On appeal, the defendant contends that to convict and sentence him for both voluntary manslaughter and unlawful wounding violates statutory and constitutional prohibitions against multiple punishments for the same offense. The statutory argument is based upon Code Sec. 19.2-294, which provides, in part:
If the same act be a violation of two or more statutes . . . conviction under one of such statutes . . . shall be a bar to a prosecution or proceeding under the other or others.
The defendant maintains that, because his single act of stabbing Rivers violated both Code Sec. 18.2-35, relating to voluntary manslaughter, and Sec. 18.2-53, concerning unlawful wounding, conviction under the first statute bars conviction under the other.
Sec. 18.2-35. How voluntary manslaughter punished. — Voluntary manslaughter is punishable as a Class 5 felony.
Sec. 18.2-53. Shooting, etc., in committing or attempting a felony. — If any person in the commission of, or attempt to commit, felony, unlawfully shoot, stab, cut or wound another person he shall be guilty of a Class 6 felony.
[1-3] Section 19.2-294, however, applies only where two or more statutory offenses are involved. While the unlawful shooting, stabbing, cutting, or wounding of another is a statutory offense, voluntary manslaughter is not; manslaughter is a common law offense. Section 18.2-35, cited by the defendant and quoted in footnote 1, merely fixes the punishment for voluntary manslaughter; the section does not define the offense. Therefore, Sec. 19.2-294 does not bar the defendant's conviction and punishment for both voluntary manslaughter and unlawful wounding.
In his constitutional argument, the defendant focuses upon the provision that no person "shall . . . for the same offense . . . be twice put in jeopardy of life or limb." U.S. Const., amend. V. The defendant reiterates his view concerning the singularity of his criminal act and emphasizes the sameness of the evidence supporting his convictions. The defendant asserts that the wounding charge was a lesser included offense of the murder charge, upon which he was convicted of voluntary manslaughter, and, thus, that his case satisfies the "same evidence" test formulated to determine the identity of offenses for double jeopardy purposes.
The constitutional provision concerning double jeopardy embodies three guarantees: "(1) 'It protects against a second prosecution for the same offense after acquittal. [(2)] It protects against a second prosecution for the same offense after conviction. [(3)] And it protects against multiple punishments for the same offense.' " Illinois v. Vitale, 447 U.S. 410, 415 (1980), quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969). Because both the defendant's convictions occurred in a single trial, only the third guarantee, viz., that against multiple punishments, is pertinent to resolution of the present appeal. Turner v. Commonwealth, 221 Va. 513, 529, 273 S.E.2d 36, 46-47 (1980).
In the single-trial setting, "the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165 (1977). And, "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." Whalen v. United States, 445 U.S. 684, 688 (1980). Or, stated another way, "the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed." Whalen, 445 U.S. at 698 (Blackmun, J., concurring). See also Busic v. United States, 446 U.S. 398, 413 (1980) (Blackmun, J., concurring).
The question resolves itself, therefore, into one of legislative intent where the issue is whether "the Legislative Branch" has provided that two offenses may be punished cumulatively. In divining this intent, the test to be applied is "whether each [offense] requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304 (1932). And, in applying this test, the two offenses are to be examined in the abstract, rather than with reference to the facts of the particular case under review. Whalen, 445 U.S. at 694 n.8.
We believe that, when viewed in the abstract, the charges involved in the present case qualify as separate offenses within the meaning of the Blockburger test and, therefore, that one offense is not lesser included within the other. The offense of murder, one of the charges against the defendant, requires proof of the victim's death; the other charge, a violation of Sec. 18.2-53, does not require proof of this fact. The Sec. 18.2-53 charge requires proof of a shooting, stabbing, cutting, or wounding. The murder charge does not require proof of any of these facts; murder may be committed by other means, e.g., by suffocating or poisoning the victim.
Consistently, we have interpreted the term "wounding," as used in statutes similar to Sec. 18.2-53, to require proof of a breaking of the skin. Shackelford v. Commonwealth, 183 Va. 423, 426, 32 S.E.2d 682, 684 (1945); Harris v. Commonwealth, 150 Va. 580, 583, 142 S.E. 354, 355 (1928).
The defendant argues, however, that Sec. 18.2-53 does not indicate any legislative intent that the punishment prescribed for a violation of the section should be in addition to the penalty provided for the primary felony in whose commission the shooting, stabbing, cutting, or wounding of another occurs. To support this argument, the defendant cites Sec. 18.2-53.1, which prohibits the use or display of a firearm in the commission of murder, rape, robbery, burglary, malicious wounding, and abduction. As the defendant points out, Sec. 18.2-53.1 provides that a violation of this section "shall constitute a separate and distinct felony" and that punishment therefor "shall be separate and apart from, and shall be made to run consecutively with, any punishment received for the commission of the primary felony." Because a similar expression of intent does not appear in Sec. 18.2-53, the defendant says, "the legislature did not intend to make Section 18.2-53 a separate offense."
We disagree with the defendant. The purpose of Sec. 18.2-53 is to deter the use of specific forms of violence and thus lessen the risk of bodily harm to the potential victims of felonious crime. To effectuate this purpose, the General Assembly employed the only appropriate means available, viz., the imposition of punishment for the use of such violence in addition to the penalty prescribed for the primary felony. We believe the legislative intent to authorize cumulative punishment is clear in Sec. 18.2-53, despite the absence of an express statement to that effect; indeed, we can perceive no other reason for the enactment of the section.
For the reasons assigned, the judgment of the trial court will be affirmed.
Affirmed.