Opinion
Record No. 2380.
February 24, 1941.
Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. MAYHEM — Indictment — Necessity for Alleging Intent to Maim, Disable or Kill — Case at Bar. — In the instant case, a prosecution for unlawful and malicious cutting, accused contended that the indictment was not in compliance with section 4402 of the Code of 1936, in that it failed to charge that the cutting was done with the intent to maim, disable, or kill, as required by the statute. The indictment, under which accused was found guilty of a felony, charged that accused did unlawfully and maliciously cut, stab and wound the victim.
Held: That the indictment was not sufficient.
2. MAYHEM — Indictment — Failure to Allege Intent Not Cured by Want of Protest — Case at Bar. — In the instant case, a prosecution for unlawful and malicious cutting, accused contended that the indictment was not in compliance with section 4402 of the Code of 1936, in that it failed to charge that the cutting was done with the intent to maim, disable, or kill, as required by the statute. The indictment, under which accused was found guilty of a felony, charged that accused did unlawfully and maliciously cut, stab and wound the victim. The prosecution urged that accused and the court knew that accused was being tried for a felony, and that he did not protest.
Held: That the fact that accused and the court knew that accused was being tried for a felony and that he did not protest did not cure the error in the indictment.
3. MAYHEM — Indictment — Failure to Allege Intent Not Cured by Section 4879 of the Code of 1936 — Case at Bar. — In the instant case, a prosecution for unlawful and malicious cutting, accused contended on appeal that the indictment was not in compliance with section 4402 of the Code of 1936, in that it failed to charge that the cutting was done with the intent to maim, disable, or kill, as required by the statute. The indictment, under which accused was found guilty of a felony, charged that accused did unlawfully and maliciously cut, stab and wound the victim. Under section 4879 of the Code of 1936, a judgment in a criminal case shall not be reversed on account of any objection to the indictment made after verdict unless the indictment be so defective as to be in violation of the Constitution.
Held: That where no felony is alleged in an indictment, it would be violative of constitutional rights to find one guilty of that grade of offense, and, therefore, section 4879 did not cure the defect in the indictment.
Error to a judgment of the Circuit Court of Dickenson county. Hon. Alfred A. Skeen, judge presiding.
Reversed.
The opinion states the case.
S. H. Geo. C. Sutherland, for the plaintiff in error.
Abram P. Staples, Attorney-General, and Walter E. Rogers, Special Assistant, for the Commonwealth.
The accused, Hugh Tompkins, was indicted for unlawfully and maliciously cutting Columbus Perrigin. He was tried, found guilty by a jury, and sentenced to two years in the penitentiary.
The accused contends that the indictment found against him is not in compliance with the statute (Code, § 4402), in that it fails to charge that the cutting was done with the intent to maim, disable, or kill Perrigin. The language used in the indictment is that he "did unlawfully and maliciously cut, stab and wound one Columbus Perrigin against the peace and dignity of the Commonwealth of Virginia."
Under this indictment the accused was found guilty of a felony; he asserts, however, that the indictment was for a misdemeanor.
[1, 2] We need not advert to the evidence because the indictment, under our recent cases, is not sufficient. In Williamson v. Commonwealth, 165 Va. 750, 181 S.E. 351, we held invalid an indictment which did not meet the requirements of the statute. There it was urged, just as is done in the present case, that the accused and the court knew that the accused was being tried for a felony, and he did not protest. See also, Lewis Merritt v. Commonwealth, 164 Va. 653, 180 S.E. 395.
Under Code, § 4879, a judgment in a criminal case shall not be reversed on account of any objection to the indictment made after verdict unless the indictment be so defective as to be in violation of the Constitution. Where no felony is alleged in an indictment, however, it would be violative of constitutional rights to find one guilty of that grade of offense. Section 4879 does not cure the defect in the indictment now before us.
The judgment is reversed and the case is remanded.
Reversed.