delivered the opinion of the court.
An indiсtment under the maiming statute, § 18-70 of the Code, was returned against the defendant, Joseph E. Banovitch, charging that in July, 1952, he unlawfully made an assault on Lucy L. Hazlewood and by the use of certain salves and medicines unlawfully caused her bodily injury, with the intent to maim and disfigure her. On his trial to a jury he was found guilty of unlawful wounding “as charged in the within indictment,” his punishment fixed at five years in the penitentiary and he was sentenced accordingly. On this appeal he alleges that error was committed in the admission of evidence, in the argument of the Commonwealth’s attorney and in holding the evidence to be sufficient to sustain the verdict.
The facts now to be recited are taken from the evidence introduced by the Commonwealth, including statements made by the defendant to officers оf the law. The defendant offered no evidence. While the alleged offense occurred in the home of Miss Hazlewood’s parents, the only
Defendant claimed to be a medical doctor but was not licensed to practice in Virginia. He was born in Germany and was 75 years оld at the time he was indicted. He stated to the officers that he attended schools and studied medicine in Germany and graduated from the University of Vienna, Austria, but with what degree does not appear. When Miss Hazlewood first knew him he lived at Crewe, in Nottoway county, Virginia, where he made, advertised and sold, among other things, a medicine for the treatment of cancer under а registered trademark. The cancer remedy consisted of three salves which he called Black Devil No. 1, No. 2 Green and No. 3 Brown. An advertisement or label was introduced showing a picture of defendant, stating the contents of the salves and giving directions for their use. The printed directions were these: “Put Cancer Ointment (No. 1) on a piece of bandage % of an inch thick, size to cover the cancer. Leave it on for 24 hours. Remove and apply Green Salve (No. 2) in the same manner every 24 hours until the cancer starts to run, then apply 3 or 4 times a day until the cancer drops out. Now apply Healing Salve (No. 3) on bandage 3 or 4 times a day. The oftener you dress the sore the quicker it will heal.”
Miss Hazlewood was a collеge and university graduate who had taught school for several years and had been in the mercantile business with her father for about 12 years. She lived with her parents in Kenbridge, Lunenburg county, adjoining Nottoway county, where the defendant lived. She was 50 years old at the time of the offense charged in the indictment. She first met the defendant about Christmas time, 1951, when she and a sister, Mrs. Gee, were tаken to see him by their brother-in-law, J. H. Revere. Mrs. Gee, who also bought medicine from defendant, did not testify.
In February or March, 1952, Miss Hazlewood visited the defendant and told him she had cancer of the womb. He stated to the officers that she also then had cancer of the rectum. He gave her the three types of salves for these troubles. About the last of June or first of July, 1952, Miss Hazlewood went to defendant’s home and told him, according to his statement to thе officers, that she had cancer of the nose. Her father and possibly one of her sisters came for the defendant and brought him to Kenbridge to treat her for that trouble, which he also diagnosed as cancer. His method of diagnosis, he said, was to apply the Black Devil No. 1 salve and if that caused itching then cancer was present.
This treatment lasted five or six weeks, during which period the defendant lived for the most part in the Hazlewood home and was in Miss Hazlewood’s room often, along with members of her family. Some three weeks after the treatments began the defendant and Miss Hazlewood became engaged to be married. He gave her an engagement ring. Mrs. Revere testified that Miss Hazlewood refused the ring when first offered but told her afterwards, in July or August, “If I do not accept the ring, then I will die of cancer. He will not continue to treat me.” However, Miss Hazlewood continued to wear the ring for some seven months after the alleged offense, and in March, 1953, the defendant told the officers they expected to get married the following month. Miss Hazlewood died on May 19, 1953, ■after the indictment but before thе trial, from a cause not shown in the record.
Defendant’s description of the treatment, as made to the officers, was that he first put the Black Devil No. 1 salve
An analysis of the salves used by the defendant on Miss Hazlewood showed that Black Devil No. 1 contained a large amount of zinc chloride, a strong corrosive chemical “that would eat tissue, flesh or even metal.” Its common use is as a flux to clean metal prior to soldering. No. 2 Green consisted of animal fat and wax. No. 3 Brown contained carbolic acid, also a corrosive when in pure form. When the No. 1 salve was applied for less than a minute to the arm of the toxicologist who made the analysis it caused a stinging, itching sensation and produced a welt. He testified, however, that he had heard that zinc chloride was sometimes used in the treatment of cancer. The medical testimony was that the diagnosis of cancer by the use of this salve was impossible and the treatment of cancer by the application of these salves was not approved or recognized in the medical profession.
On November 13, 1952, the defendant- presented to the Bank of Lunenburg and cashed a check drawn by Miss Hazlewood and payable to him in the sum of $3,384.36, which was all the money she had in her checking account at that time. There was no explanation of this check in the evidence.
On February 9, 1953, the defendant went with Miss Hazlewood to a hospital in Oxford, North Carolina, where defendant stated he was her family physician and she was admitted as his patient. The evidence does not disclose the
Microscopic examination of tissue taken from the nose of Miss Hazlewood after her death disclosed no evidence of any malignancy. Miss Hazlewood’s sister testified that when the defendant began the treatment on July 2 there were no marks, discoloring, moles or anything of that nature on her nose or face and nothing to indicate there was anything wrong with her.
At the conclusion of the evidence the court instructed the jury without objection that if the defendant applied the salve to Miss Hazlewood with a corrupt and evil intent of maiming or disfiguring her permanently, and not as a cure for some disease he may have thought she had, then he was guilty of unlawful maiming as charged in the indictment. The jury were also told that the Commonwealth must prove beyond a reasonable doubt that the defendant made an assault upon Miss Hazlewood “with the particular intent to maim or permanently disfigure her before he can be found guilty of unlawful wounding as charged in the indictment.”
These instructions became the law of the case and they consist with the law of the land. Thus in
Thacker
v. Commonwealth,
“When a statute makеs an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found as a matter of fact before a conviction can be had; and no intent in law or mere legal presumption, differing from the
Section 18-70 оf the Code, the maiming statute, provides that if any person maliciously or unlawfully shoot, stab, cut or wound another, or by any means cause him bodily injury, with the intent to maim, disfigure, disable or kill him, he shall be punished as the statute prescribes. In
Harris
v.
Commonwealth,
Proof of the specific intent is necessary to a conviction under the statute.
Hay v. Commonwealth,
The specific intent may, like any other fact, be shown by circumstances. Intent is a state of mind which can be evidenced only by the words or conduct of the person who is claimed to have entertained it.
Kuenzli
v.
State,
However, an intent to maim or disfigure cannot be presumed from an act which does not naturally bespeak such intent. “The color of the act determines the complexion of the intent only in those situations where common experience has found a rehable correlation between a particular act and a corresponding intent.” Hubbard v. United States, (9th Cir.), 79 F. (2d) 850, 853; 22 C. J. S., Criminal Law, § 32, pp. 91-2, note 4.
In
Merritt
v.
Commonwealth, supra,
the indictment charged the accused with maliciously pointing a loaded gun at Trull, who was in shoоting range. It was held that the indictment charged an assault only, and “In order to raise this assault to a more substantive crime, it must be done with a specific intent to take life. This intent cannot be inferred from the act alleged.” 164 Va. at pp. 662-63,
The Commonwealth states in its brief that it has found no prior case in which a person purporting to practice medicine has been сonvicted of mayhem for the improper treatment of disease, but cites cases of convictions of manslaughter where death resulted from such treatment, whether the person giving the treatment was a licensed doctor or merely assumed to act as such.
Hampton
v.
State,
The treаtments had been over for four months when the defendant received the check. He and Miss Hazlewood were then engaged to be married and for all the evidence shows that engagement continued until it was ended by her death. Seven months after the treatments were concluded he went with her to a hospital in North Carolina and stayed with her during the two weeks or more that she was there. While she was in the hospital she gave the engagement ring to her mother but it is not shown that it was ever given back to the defendant. It is shown that after she returned from the hospital he visited her in her home and their relations to each other apparently did not change up to the time of her death.
The evidence in this case does not furnish proof beyond a reasonable doubt that the defendant applied the salves to the person of Miss Hazlewood with the specific intent to maim or disfigure her, nor does it present facts from which such intent may properly be presumed. For the absence of that proof the judgment of conviction of unlawful wounding must be reversed.
As stated in
Commonwealth
v.
Stratton,
In
Davis
v.
Commonwealth,
Generally sрeaking, consent of the person assaulted is a good defense except where the consent is obtained by fraud or where the peace and dignity of the State are involved. 6 C. J. S., Assault and Battery, § 90, p. 941. But consent is no excuse for recklessness.
State
v.
Gile,
In
Commonwealth
v.
Pierce, supra,
It is generally held, as noted, that if a physician, or a. person assuming to act as such, through criminal negligence in the treatment of a patient causes his death he is guilty of manslaughter. If the criminal negligence results only in bodily injury to the patient, instead of death, it follows, we think, that the offense of assault and battery is committed,, for the same reason as it was decided in Davis v. Commonwealth, supra, that the defendant there was guilty of assault and battery if he injured another while driving his automobile in a criminally negligent mannеr.
In
Richardson
v.
Commonwealth,
We are, therefore, of opinion to remand this case to permit retrial, limited to the charge of assault and battery.
On such retrial the argument of the Commonwealth’s-attorney should omit any reference to the failure of the defendant to testify, if that occurs. The requirement of the statute, § 19-238, that such failure shall not be the subject of any comment before the court or the jury, must be strictly observed, otherwise a reversal may result.
Joyner
v.
Commonwealth,
There was no error in the admission of the testimony on this trial as compláined of in defendant’s assignments of error Nos. 1, 2 and 3. While the photogrаphs of Miss Hazlewood introduced in evidence were taken after her death, those things about her appearance which were attributed to the treatment by the defendant were sufficiently explained. The statements alleged to have been made by Miss Hazlewood prior to her death and to which exceptions were taken were admissible as indicating her state of mind and the relations existing between her and the defendant.
Karnes
v.
Commonwealth,
For the reasons stated the judgment below is reversed and the case is remanded for a new trial on the charge of assault and battery, if the Commonwealth be so advised.
Reversed and remanded.