06 April 2005

Felonious Wounding in Virginia

In reference to my "Trial of the Century" post this question was in the comments:
I assume your guy was charged under § 18.2-51 or its progeny, which does indeed offer four different charges... but I'll be darned if I can see which one is the "malicious injury" charge is the judge was talking about.

§ 18.2-51 is shooting, stabbing, cutting, or wounding with intent to maim, disfigure, disable, or kill - maliciously it's a Class 3 felony; criminally negligent it's a Class 6 felony. Since you said it was 5-20, you meant the Class 3 version. So the elements the Commonwealth would have to show: (1) malicious; (2) bodily injury; (3) intent to maim, disfigure, disable, or kill.

Since all the Commonwealth has to do at the prelim is establish probable cause, it seems they could meet that burden easily based on the testimony presented.
. . .
What charge was the judge referring to?
Here's the statute in question:
§ 18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.

If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
Case law establishes 4 different felonies under this statute. The ones everybody knows are malicious wounding, which covers the "shoot, stab, cut, or wound" part of the statute and unlawful wounding, which is basically recklessly shooting, stabbing, cutting or wounding someone. How you can recklessly wound someone with "with the intent to maim, disfigure, disable, or kill" I don't know but I've only been able to preserve the issue in one case and my client decided not to appeal.

The other two charges are related to the "or by any means cause him bodily injury" section of the statute. Under this section fall malicious injury and unlawful injury. Case law is specific in that a "wound" requires breaking of the skin. Internal damage is an "injury." A malicious wounding can be charged generally but a malicious injury must be charged with specificity as to cause and effect. In other words, a malicious wounding charge can say "Smith did maliciously wound Jones" but a malicious injury charge must say "Smith did strike Jones with his fist causing Jones to have a concussion." Case law is pretty lacking as to a definition of an injury actually is but it seems to be something at least more than a bruise (although there are some amazingly bad unpublished cases which would make just about any battery charge a malicious injury).1

But in most cases it's a moot point. If the prosecutor charges malicious wounding and the defense objects the prosecutor can amend or refile. Even if the prosecutor goofs and doesn't do this, the defense preserves the appeal, and the appellate courts overturn it (always remembering appellate review is entirely discretionary), the case comes back to the trial court and the prosecutor merely files a new charge in the proper manner and proceeds to trial again. However, most prosecutors will just amend the charge if the defendant raises the objection (prosecutors can amend through out most of the trial process in Virginia).

The fact that it's a point so seldom raised and argued was the reason I was impressed that a judge knew it - particularly a judge who sits in lower court and usually doesn't have to put too fine a point on felonies because all he has to do is decide probable cause.


1 The actual locus of this charge should revolve around the "with the intent to maim, disfigure, disable, or kill" section of the statute because without that intent the charge should be reduced to a misdemeanor battery. However, in reality this seems to be one of the most ignored sections of any statute out there. Prosecutors prosecute, judges decide, and deals are made based upon whether there was a wound or injury. Period. Or, to put it in legalese: the defendant will always be found to have intended the natural consequences of his actions. So, if you hit somebody and he falls down but is unharmed you are okay; if he falls down and breaks his arm it'll be charged as malicious injury and probably convicted as unlawful injury.

Juries take this more seriously but the charge carries a 5-20 year sentence; juries cannot suspend any of that 5 years and a judge can. As well, judges will often refuse to reduce time to which a jury has sentenced a defendant. Therefore, taking this to trial will often raise the defendant's exposure dramatically and therefore (as is true with many felonies in Virginia), there are not too many people willing to risk a jury trial.

12 comments:

Anonymous said...

I am the victim of a malicious wounding. Can I bring persons to testify on past abuses that did not result in charges or my calling the police?

Anonymous said...

I have a family memeber that was charged with malicius wounding, but it got dropped down to unlawful wounding. He goes back for sentencing in Jan. Do you think he will get time in jail for this?

Anonymous said...

my ex was charged with malicious wounding. he was in a fight and pushed this guy down and he hit the curb and was in a coma for a couple of days why does he get malicious wounding instead of malicious injury ?

Anonymous said...

My boyfriend was conviced of malicious wounding. He was not a part of the fight. A person he was out with was. They did the trails completly wrong. The main person involved was tried after the other two. There where no wepons involved in this. What is the best way to go about this?

Anonymous said...

I was conviced of this 12 years ago and I was actually trying to stop the fight my friends were in. If its not too late, I suggest that your boyfriend spare no expense with a lawyer. Because of this felony, I'm competing with illegal immigrants for a job. Good Luck!

Anonymous said...

I know that anyone can go to the urgant care, or perhaps the emergancy room and wrongfully accuse anybody of malicious wounding! This is the charge that has been brought against me. I was simply helping a friend that a gun to his head! I did what any friend would do(or so i thought) I wrestled it way. 23 hours later I was arrested w/warrant for malicious wounding.(BULL ----) I forgive "JASON MARTINO" OF PA. However my wife and kids are not happy. I spent my life savings on my defense-It is very possible that they will forclose on the house-PLEASE BE CAREFULL WHEN DEALING WITH DRUG ADDICTS! Thank you!

Anonymous said...

My 21yr old brother stabbed someone after they attacked him in our frount yard he was getting badly beaten up and he had a knife on him and stabbed they guy but it was on our property he is gettin charged with malicious wounding how much time do you think he will get if he is send to prison?

Anonymous said...

ive been sentenced to 10 months for unlawful wounding. it was actually malicious wounding but the plea bargain is 10 months to plea to a lesser charge. we were in a drug house and she attacked me and we fought for a while and i ended up fracturing her skull.

so my advice to all is GET A GOOD LAWYER

Anonymous said...

My 21 year old son is on probation for 5 years and just got accused of malicious wounding after a guy and his friends tried to crash his party and he asked them not to come in he cut the guys finger with a pocket knife. What should he do and how many years do you think they will give him?

Anonymous said...

A friend of mines got in to a mutual fight at his party in his home after asking the other guy to leave. My friends malicious wounding charge was dropped to unlawful wounding. After hitting the guy no more than 3 times and breaking his jaw and cracking his eye socket. My friend will be sentenced in Feb. How much time do you think he will get? His lawyer would like to appeal do you think thats a good idea?

smartin6777 said...

ONE OF MY BEST FRIENDS GOT MALICIOUS WOUNDING BACK IN 2001. HIS RELEASE DATE IS 8/4/2037. HE AND HIS BROTHERS WERE CHARGED UNDER THE "BY MOB" STATUTE, AND OUR SMALL TOWN PROSECUTOR WHO HATED MY FRIEND ALREADY PUSHED THE JURY TO IGNORE THE FACT THAT IT WAS THREE BOYS (NO MORE THAN 150LBS EACH) AGAINST THE ENTIRE LOCAL COLLEGE 1ST STRING FOOTBALL PLAYERS. GET A LAWYER ANYTIME YOU ARE CHARGED WITH ANYTHING IN THE STATE OF VA BECAUSE THESE CONSERVATIVE ASSHOLES FORGET THAT WE'RE ALL HUMAN. THEY THINK THE UNEDUCATED LOW INCOME OFFENDERS MUST BE KEPT OFF THE STREETS WHILST THEIR OWN CHILDREN, SIBLINGS, ETC WHEN CAUGHT WITH THE PROVERBIAL HAND IN THE COOKIE JAR ARE TAKEN INTO CUSTODY...THEIR PAMPERED ARISTOCRATIC FAMILIY MERELY NEEDS HELP. IMAGINE THAT! I JUST LOVE THIS STATE WITH ALL IT'S HIDDEN CIVIL INJUSTICE AND BLATENT DISREGARD OF FACTS. IF YOU'RE NOT PART OF THEIR ESTEEMED ULTRA CONSERVATIVE GROUP...THEN YOU MUST BE A DANGER TO SOCIETY.

Anonymous said...

My brother was arrested and charged with malicious wounding recently. During a heated argument with our Dad, they began throwing punches and then both lunged at each other. As they did this, my brother pulled out his knife and cut my Dad 2x. He has been charged with malicious wounding. Both were drinking. What is he looking at, time wise?