Opinion
Record No. 1607-92-1
Decided: May 24, 1994
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS, Randolph T. West, Judge
Reversed and remanded.
Robert Moody, IV (Segall Moody, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton, and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
Richard Scott Fett was convicted by a jury of unlawful wounding. The sole issue granted for review is whether the jury's verdict, which failed to recite the requisite intent, is void. For the reasons that follow, we reverse the conviction and remand for a new trial.
Fett was tried on an indictment which charged that in violation of Code Sec. 18.2-51, "Fett feloniously and maliciously caused bodily injury to Randolph Hugh Hobbs, with intent to maim, disfigure, disable or kill." At the conclusion of the evidence the jury was instructed that it could find Fett not guilty, or guilty of malicious wounding, or guilty of unlawful wounding, or guilty of assault and battery. The jury returned a verdict which stated "We, the jury find the defendant guilty of unlawful wounding and fix his punishment at 5 yrs." Fett contends that the verdict is void because it fails to recite the requisite intent, either specifically or by reference to the indictment.
In Bacci v. Commonwealth, 213 Va. 236, 191 S.E.2d 182 (1972), the Supreme Court decided this precise issue. It held "[t]he verdict . . . [was] void . . . for failure to recite that the wounding was done with the necessary intent or as charged in the indictment." Id. at 237, 191 S.E.2d at 183. Relying upon Jackson v. Commonwealth, 218 Va. 490, 237 S.E.2d 791 (1977), the Commonwealth argues, however, that the requisite intent was evident in the verdict "by necessary implication." We disagree.
In Jackson, the Court found that the "requisite intent, while not stated specifically in the verdicts, was necessarily implied [where the] findings of the jury were based 'on the issue joined.' " 218 Va. at 492-93, 237 S.E.2d at 792. The "issue joined," as recited on the verdict form in Jackson, involved only two offenses, both of which were submitted to the jury and required proof of the identical intent. Id. In Fett's prosecution, the verdict contained no reference to the "issue joined." In addition, the "issue joined" in Fett's prosecution, involved three offenses, as in Bacci, all of which did not require proof of the same intent.
Accordingly, we hold that the verdict of conviction in this case is similar to the verdict held to be void in Bacci. We, therefore, reverse the judgment order and remand the case for a new trial upon a charge no greater than unlawful wounding with intent to maim, disfigure, disable, or kill. See Bacci, 213 Va. at 238, 191 S.E.2d at 183.
Reversed and remanded.
I respectfully disagree with the finding of the majority that the judgment of the trial court is void. For the reasons set forth in Jackson v. Commonwealth, 218 Va. 490, 237 S.E.2d 791 (1977) and, in addition, because Fett failed to raise the issue below that he now urges upon this Court, I would affirm the judgment of the trial court.