| W. Va. | May 17, 1910
Upon an indictment for feloniously and maliciously wounding one Cleveland Slavin, the plaintiff in error, William Gibson, was convicted of the milder offense of unlawful wounding, and sentenced to confinement in the penitentiary for a period of five years. On the writ of error allowed him, he makes a number of assignments of error.
Gibson and several others were employed in a mill at Dun-levie, West Virginia. Practical joking was a custom among these men. Slavin, without the knowledge of Gibson, put oil on the handle of the latter’s oil can so that, in picking it ixp, his hand became greasy. He also oiled an iron bar used by Gibson. Having ascertained from the other men who had played the prank on him, Gibson began to throw oil on Slavin’s back, and, when he turned around threw it in his face. Thereupon, Slavin threw a stick at Gibson, who responded with another which broke in two. Slavin returned a piece of this stick. Then Gibson threw an iron bar at him which struck him on the right side of the back over the kidney, injuring him to such an extent that he was confined to his bed for two weeks or more and his bladder had to be relieved, by artificial means, of the urine which, 'when extracted, was found to be bloody.-
The sufficiency of the indictment is challenged because it omits designation of the instrument with which the wound was inflicted. This assignment of error is not well taken. The indictment need not set forth or describe the instrument. Crookham v. The State, 5 W. Va. 510" court="W. Va." date_filed="1871-07-15" href="https://app.midpage.ai/document/crookham-v-state-6591258?utm_source=webapp" opinion_id="6591258">5 W. Va. 510; Canady’s Case, 22 Grat. 899; Jackson’s Case, 96 Va. 1007; Erle’s Case, 2 Lewin 133; State v. Ladd, 2 Swan (Tenn.) 226.
As the evidence fails to show any solution or breaking of the skin of the prosecuting witness, lack of an essential element
Our statute lias been broadened somewhat by the use of the terms “Or by any means cause him bodily injury with intent”, etc. Under a proper indictment, any sort of bodily injury, inflicted by any means, with intent to maim, disfigure or kill, is an offense under this statute, punishable as a malicious or unlawful wounding, but it is not a technical wounding, and an indictment merely for cutting and wounding does not cover it. This addition to the statute does not alter the meaning of its original terms. It simply introduces a new offense made up of new elements. The indictment in,this case charges that the
Admitting lack of proof of any fracture of the external skin, the Attorney General is forced to the contention that the presence of blood in the urine justifies an inference of fracture of the covering or skin of the kidney, there being some authority for the position that the solution of an inner lining of any portion of the body constitutes a wound. In Reg. v. Smith, 8 C. & P. 113, it was held that a blow on the face with a hammer, breaking the lower jaw and parting the internal skin, was sufficient. Two eases, Reg. v. Waltham, 3 Cox C. C. 442, and Reg. v. Jones, 3 Cox C. C. 441, are cited, in Bishop on Stat. Crimes, section 314, as holding that the parting of the membrane lining of the urethra, constitutes an offense, but these two reports are not in our library, for which reason we are unable to see what the evidence was. The fracture may have been shown by positive and direct evidence. It was susceptible of proof in that ■way in the case of the broken jaw and may have been in the other two cases. Here, we have nothing but a mere uncertain inference, arising from the presence of blood in the urine. We think this is too remote and uncertain to sustain a verdict.
The next important assignment of error is the omission from the record of any plea and joinder of issue. After the writ of error was allowed by this Court an attempt was made to cure this by the entry of a nunc pro tunc order, showing that, before the jury was empaneled and sworn, the defendant had entered his plea of not guilty, and placing the same upon the record as of the 1th day of October, 1909, the' date of the trial. Upon what evidence' the entry of such plea before the trial was ascertained, the record does not show. The defendant objected to the entry of the order but did not take any bill of exceptions, showing the character of evidence upon which it was made, nor in any way place such evidence upon the record. Hence the action of the court, in entering the order, does not seem to have been objected to on .account of insufficiency of the evidence. The court having
In response to the complaint that the record does not show the prisoner was in court when the verdict was rendered, it suffices to say the order shows he was there when the jury was empaneled and after the verdict was rendered, from which the presumption of his presence during the intervening period arises. The continuance of a fact or state of things once shown to exist is presumed, in the absence of evidence to the contrary. State v. Nethken, 60 W. Va. 673" court="W. Va." date_filed="1906-11-27" href="https://app.midpage.ai/document/state-v-nethken-8175933?utm_source=webapp" opinion_id="8175933">60 W. Va. 673; State v. Good, 14 W. Va. 834" court="W. Va." date_filed="1878-11-02" href="https://app.midpage.ai/document/state-v-goodrich-6592065?utm_source=webapp" opinion_id="6592065">14 W. Va. 834, 846; Moore v. Gilliam, 5 Munf. 346" court="Va." date_filed="1817-01-31" href="https://app.midpage.ai/document/moore-v-gilliam-7384933?utm_source=webapp" opinion_id="7384933">5 Munf. 346.
The hearsay evidence of the witness Slavin was not excepted to. Hence, the court did not err in admitting it.
While the court sustained an objection to a question, j)ro-
As it does not appear what it was expected the witness Bodin would say, in response to the question propounded to him, concerning a weapon in the hands of Arbrogast, the action of the court in sustaining the objection to the question is. not shown tó have been prejudicial, even if erroneous.
It is said the court abused its discretion in sentencing the prisoner to five years’ imprisonment, 'but, as the judgment will have to be reversed, for insufficiency of the evidence, we do not deem it necessary to pass upon this question.
For the reasons stated, the judgment will be reversed, the verdict set aside and the-case remanded for a new trial.
Reversed and Remanded.