State v. Daniel

8 Citing cases

  1. United States v. Cobbs

    274 F. Supp. 3d 390 (S.D.W. Va. 2017)   Cited 4 times
    Finding that unlawful wounding, a crime that involves "intentionally injuring another person necessarily entails the use of 'force capable of causing physical pain or injury.'"

    Because this statute creates two separate crimes—malicious wounding and unlawful wounding —I must apply the modified categorical approach. SeeState v. Daniel , 144 W.Va. 551, 109 S.E.2d 32, 34 (1959) (holding W. Va. Code § 61–2–9(a)"provides for both malicious and unlawful wounding, the only difference between the two being that unlawful wounding is done without malice"). The record plainly indicates that the defendant was convicted of unlawful wounding.

  2. State v. Maichle

    895 S.E.2d 181 (W. Va. 2023)   Cited 3 times
    Using "assault" and "wound" interchangeably in analyzing W.Va. Code § 61-2-9

    I Kelly’s W. Va. Statutes, Chap. 40 (Ch. 144 of Code), § 9, at 388 (Rev. 1878-79).The State argues that State v. Daniel, 144 W. Va. 551, 109 S.E.2d 32 (1959), supports its position that there are two ways to commit malicious assault by stating that the indictment in that case "charges both wounding and bodily injury caused by a blow of the fist." Id. at 554, 109 S.E.2d at 34. However, Daniel does not stand for that proposition because it addressed a disparity between the indictment and the evidence presented at trial, not the sufficiency of the indictment or the essential elements of malicious assault.

  3. State v. Butler

    No. 11-1191 (W. Va. Sep. 7, 2012)   Cited 3 times
    In Butler, we held, "the Court finds no merit in petitioner's argument in regard to the sufficiency of the evidence for his kidnapping conviction."

    Specifically, petitioner argues that it was error to allow his conviction based upon evidence establishing that petitioner used only his hands during his attacks on the victim. Petitioner argues that secondary sources, relying on a line of cases including State v. Daniel, 144 W.Va. 551, 109 S.E.2d 32 (1959), state that a wound must be inflicted with a weapon. Petitioner admits that the circuit court found Daniel inapplicable, but argues that whether the circuit court erred in applying this case is not settled law since the "issue in malicious wounding cases is confused and not uniformly applied from circuit to circuit."

  4. State v. Childers

    187 W. Va. 54 (W. Va. 1992)   Cited 7 times
    In Childers, we found on appeal that the State's indictment was defective, but stated in syllabus point 3, in part: "Upon the reversal of a criminal case on appeal, the State is generally not precluded by double jeopardy principles from procuring a new indictment and retrying the defendant.

    ]" 170 W. Va. at 51, 289 S.E.2d at 725. In other cases, we have recognized, without any elaborate discussion, the right of the State to procure a new indictment where the original indictment was declared void on appeal. See State ex rel. Starr v. Halbritter, 183 W. Va. 350, 395 S.E.2d 773 (1989); State v. Satterfield, supra; State ex rel. Pinson v. Maynard, 181 W. Va. 662, 383 S.E.2d 844 (1989); State v. Daniel, 144 W. Va. 551, 109 S.E.2d 32 (1959). III.

  5. State v. Combs

    166 W. Va. 149 (W. Va. 1980)   Cited 3 times
    Stating that "[t]he statute makes it clear, as does the case law in this State, that intent is an essential element of both malicious wounding and unlawful wounding," and quoting Syllabus point 3 of Stalnaker

    Syllabus Point 3 of Stalnaker states that "`[t]o support a finding of unlawful wounding under Section 9 of Chapter 144 of the Code [ Code, 61-2-9], there must be intent to produce a permanent disability or disfiguration.' State v. Taylor, 105 W. Va. 298, Point 3 Syllabus [ 142 S.E. 254]." Accord, State v. Daniel, 144 W. Va. 551, 109 S.E.2d 32 (1959); McComas v. Warth, 113 W. Va. 163, 167 S.E. 96 (1932); State v. Meadows, 18 W. Va. 658 (1881). Since intent to produce a permanent disability or disfigurement is an essential element of unlawful wounding, we must now determine whether the instruction in this case impermissibly shifts the burden of proof and requires the defendant to disprove the existence of such intent.

  6. State v. Sacco

    165 W. Va. 91 (W. Va. 1980)   Cited 5 times

    The State confesses error was committed in this respect. The appellant contends the failure of the indictment to specify the means by which the bodily injury was caused precluded the introduction of evidence at trial of any bodily injury done to the victim other than a technical wounding as charged in the first part of the indictment, citing State v. Daniel, 144 W. Va. 551, 109 S.E.2d 32 (1959). Particularly the appellant complains that over his objection the State was permitted to introduce evidence that showed Hughes died of a heart attack nine days after the assault.

  7. State ex rel. Johnson v. Hamilton

    164 W. Va. 682 (W. Va. 1980)   Cited 22 times
    In State ex rel. Johnson v. Hamilton, 164 W. Va. 682, 266 S.E.2d 125 (1980), the Court examined the "same evidence" test and the "same transaction" test in conjunction with the double jeopardy rule.

    The Court infers from the arguments of counsel and the stipulation in open court that it was assumed that under prior practice the State had a right to try the defendant for each separate alleged murder and, prior to Dowdy, supra, such a procedure would have been perfectly acceptable under West Virginia law. State v. Daniel, 144 W. Va. 551, 109 S.E.2d 32 (1959); Lawrence v. Commonwealth, 181 Va. 582, 26 S.E.2d 54 (1943); cf. State v. Houchins, 102 W. Va. 169, 134 S.E. 740 (1926). Our discussion in the Dowdy case concerning proper rules for implementing the W. Va. Const.'s prohibition against double jeopardy indicates that our selection of the "same transaction" test and "same evidence" test, depending upon which is more favorable to the defendant, is a matter of policy which goes to the appropriate procedure for securing a fundamental right.

  8. State v. Bennett

    157 W. Va. 702 (W. Va. 1974)   Cited 27 times
    In State v. Bennett, 157 W. Va. 702, 203 S.E.2d 699 (1974), this Court held, at syllabus point 9: "An accused who is indicted solely as a principal in the first degree is entitled to a directed verdict of acquittal upon proof by the State that he was only a principal in the second degree."

    Code 1931, 61-11-14 permits the State to take additional prosecutorial action against the defendant Bennett. See State v. Daniel, 144 W. Va. 551, 109 S.E.2d 32 (1959). However, as to the charge for which the defendant was convicted, he has been once placed in jeopardy and he is entitled to be discharged from further prosecution as the alleged perpetrator of the crime of attempted armed robbery upon the person of Wade Bennett.