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.
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.
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."
]" 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.
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.
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.
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.
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.