Opinion
Record No. 1062-91-1
April 27, 1993
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH RICHARD S. BRAY, JUDGE.
William R. Brown, for appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Baker and Willis.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
The issue on appeal is whether the record contains sufficient evidence of malice to raise an assault to the level of malicious wounding.
Malice inheres in the intentional doing of a wrongful act without legal justification or excuse. Malice is not confined to ill will, but includes any action flowing from a wicked or corrupt motive, done with an evil mind or wrongful intention, where the act has been attended with such circumstances as to carry in it the plain indication of a heart deliberately bent on mischief. Malice is implied from any willful, deliberate and cruel act against another.
Williams v. Commonwealth, 13 Va. App. 393, 398, 412 S.E.2d 202, 205 (1991). See Hamm v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (1993).
The victim, a sixty-eight year old woman, was standing in her front yard talking with her daughter-in-law. Hedgepeth and another man walked by, turned, and ran back. Hedgepeth struck the victim a severe blow to the face and took her pocketbook. The victim was knocked down, her jaw was broken on both sides, her nose was broken, and her lip was severely cut. Hedgepeth was convicted of robbery. That conviction is not involved in this appeal. He was convicted of malicious wounding under Code § 18.2-51. His sole contention on appeal is that the evidence was insufficient to prove that he assaulted the victim maliciously. We disagree and affirm the judgment of the trial court.
Without provocation or legal justification, Hedgepeth invaded the property of the victim, a defenseless woman of mature years. For the purpose of robbing her, he struck her in the face with sufficient force to inflict severe and disabling injuries, breaking several bones and causing a severe laceration. This brutal and unprovoked attack was in itself malicious. See Shackelford v. Commonwealth, 183 Va. 423, 32 S.E.2d 682 (1945);Dawkins v. Commonwealth, 186 Va. 55, 41 S.E.2d 500 (1947);Bryant v. Commonwealth, 189 Va. 310, 53 S.E.2d 54 (1949);Fletcher v. Commonwealth, 209 Va. 636, 166 S.E.2d 269 (1969);Williams, 13 Va. App. at 398, 412 S.E.2d at 205.
Moreover, Hedgepeth assaulted the victim in the course of robbing her. The malice inherent in the robbery attaches to the assault and provides the proof of malice necessary to support the malicious wounding conviction. See Spain v. Commonwealth, 7 Va. App. 385, 396, 373 S.E.2d 728, 734 (1988).
The judgment of the trial court is affirmed.
Affirmed.