I assume your guy was charged under § 18.2-51 or its progeny, which does indeed offer four different charges... but I'll be darned if I can see which one is the "malicious injury" charge is the judge was talking about.Here's the statute in question:
§ 18.2-51 is shooting, stabbing, cutting, or wounding with intent to maim, disfigure, disable, or kill - maliciously it's a Class 3 felony; criminally negligent it's a Class 6 felony. Since you said it was 5-20, you meant the Class 3 version. So the elements the Commonwealth would have to show: (1) malicious; (2) bodily injury; (3) intent to maim, disfigure, disable, or kill.
Since all the Commonwealth has to do at the prelim is establish probable cause, it seems they could meet that burden easily based on the testimony presented.
. . .
What charge was the judge referring to?
§ 18.2-51. Shooting, stabbing, etc., with intent to maim, kill, etc.Case law establishes 4 different felonies under this statute. The ones everybody knows are malicious wounding, which covers the "shoot, stab, cut, or wound" part of the statute and unlawful wounding, which is basically recklessly shooting, stabbing, cutting or wounding someone. How you can recklessly wound someone with "with the intent to maim, disfigure, disable, or kill" I don't know but I've only been able to preserve the issue in one case and my client decided not to appeal.
If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such act be done unlawfully but not maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6 felony.
The other two charges are related to the "or by any means cause him bodily injury" section of the statute. Under this section fall malicious injury and unlawful injury. Case law is specific in that a "wound" requires breaking of the skin. Internal damage is an "injury." A malicious wounding can be charged generally but a malicious injury must be charged with specificity as to cause and effect. In other words, a malicious wounding charge can say "Smith did maliciously wound Jones" but a malicious injury charge must say "Smith did strike Jones with his fist causing Jones to have a concussion." Case law is pretty lacking as to a definition of an injury actually is but it seems to be something at least more than a bruise (although there are some amazingly bad unpublished cases which would make just about any battery charge a malicious injury).1
But in most cases it's a moot point. If the prosecutor charges malicious wounding and the defense objects the prosecutor can amend or refile. Even if the prosecutor goofs and doesn't do this, the defense preserves the appeal, and the appellate courts overturn it (always remembering appellate review is entirely discretionary), the case comes back to the trial court and the prosecutor merely files a new charge in the proper manner and proceeds to trial again. However, most prosecutors will just amend the charge if the defendant raises the objection (prosecutors can amend through out most of the trial process in Virginia).
The fact that it's a point so seldom raised and argued was the reason I was impressed that a judge knew it - particularly a judge who sits in lower court and usually doesn't have to put too fine a point on felonies because all he has to do is decide probable cause.
1 The actual locus of this charge should revolve around the "with the intent to maim, disfigure, disable, or kill" section of the statute because without that intent the charge should be reduced to a misdemeanor battery. However, in reality this seems to be one of the most ignored sections of any statute out there. Prosecutors prosecute, judges decide, and deals are made based upon whether there was a wound or injury. Period. Or, to put it in legalese: the defendant will always be found to have intended the natural consequences of his actions. So, if you hit somebody and he falls down but is unharmed you are okay; if he falls down and breaks his arm it'll be charged as malicious injury and probably convicted as unlawful injury.
Juries take this more seriously but the charge carries a 5-20 year sentence; juries cannot suspend any of that 5 years and a judge can. As well, judges will often refuse to reduce time to which a jury has sentenced a defendant. Therefore, taking this to trial will often raise the defendant's exposure dramatically and therefore (as is true with many felonies in Virginia), there are not too many people willing to risk a jury trial.
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