B. VIRGINIA CODE SECTION 18.2-51.2 & 18.2-32 AS DEFINED:
i. Virginia Code Section 18.2-51.2 provides as follows:
A. If any person maliciously shoots, stabs, cuts, or wounds, any other
person, or by any means causes bodily injury with the intent to maim,
disfigure, disable, or kill, he shall be guilty of a Class 2 Felony if the victim
is thereby severely injured and is caused to suffer permanent and
significant physical impairment.
B. If any person maliciously shoots, stabs, cuts, or wounds, any other
woman who is pregnant, or by any means causes bodily injury with the
intent to maim, disfigure, disable, or kill the pregnant woman or cause
the involuntary termination of her pregnancy, he shall be guilty of a
Class 2 Felony if the victim is thereby severely injured and is caused to
suffer permanent and significant physical impairment.
C. For purposes of this section, the involuntary termination of a
woman’s pregnancy shall be deemed a severe injury and a permanent
and significant physical impairment.
ii. Virginia Code Section 18.2-32 provides as follows:
Murder, other than capital murder, by poison, lying in wait,
imprisonment, starving, or by any willful, deliberate, and premeditated
killing, or in the commission of, or attempt to commit arson, rape,
forcible sodomy, animate or inaminate object sexual pentration, robbery,
burglary, or abduction, except as provided in Section 18.2-31, is murder
of the first degree, punishable as a Class 2 Felony.
All murder other than capital murder and murder in the first degree is
murder of the second degree and is punishable by confinement in a
state correctional center for not less than five years nor more than
In compairing both statues, specifically Annotated Code Section 18.2-32 of the Code of Virginia, it is evident that both malice and intent are the common thread..”Malicious intent is an element of both first-degree murder and second-degree murder. What elevates the lesser crime to the greater grade and invokes the heavier penalty is the element of premeditation.” Baker v. Commonwealth, 218 Va. 193; 237 S.E. 2d 88 (1977).
Yet, the Court noted in their Memorandum Opinion that, ” Aggravated malicious wounding requires proof of a specific intent, whereas second-degree murder requires no specific intent.” Here, the Court neglects that there is a slew of established case law that dictates otherwise; i.e. Epperly v. Commonwealth, 224 Va. 214; 294 S.E. 2d 882 (1982)(where the exact state of defendant’s mind at the time of killing is the crucial factor in determining intent).
It is noteworthy to point out that was the Commonwealth’s exact argument to the trial court for the admissibility of the misdemeanor indictments the Petitioner also faced to be included in the felony trial. In other words intent is only suitable when it appeals to the Petitioner’s accusers. At least that’s what the Court of Appeals and the Supreme Court of Virginia are saying. See opinion from the Court of Appeals of Virginia, dated June 12th, 2012.
Moreover, “the test of the criminal intent in the use of a deadly weapon is to be.found, not in the manner in which or the purpose for which the previous possession of the weapon was acquired, but in its deliberate use for a deadly purpose.” Adams v. Commonwealth, 163 Va. 1053; 178 S.E. 29 (1935).
Interestingly, the Court noted that, “Bomber does not challenge the sufficiency of the evidence supporting either conviction, nor does he challenge the casual relation between the wounding and the death.”
a. THERE IS A CASUAL RELATION BETWEEN THE MALICIOUS
WOUNDING AND THE DEATH OF THE VICTIM
It is necessary to point out that the Court stated, “The murder may be accomplished through any of the same methods as a malicious wounding, or others, such as poisoning, strangulation, or starving.” Here the Court erred by referencing poisoning, strangulation, and starving, as these are deliberate acts found specifically in first-degree murder in Code Section 18.2-31. However, the Court overlooks that under the provisions set forth in Code Section 18.2-32 that the ONLY WAY to commit second-degree murder is by a malicious wounding of the victim.
Next in the series: Petition to amend Virginia Code Section 18.2-51.2 – Part 3.
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David Bomber #1130793
Nottoway Correctional Center
P.O. Box 488
Burkeville, Va. 23922
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