Boone v. Commonwealth

In Boone v. Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992), the Court reversed and remanded a malicious wounding conviction for failure to give a lesser-included assault and battery instruction where Boone admitted he beat the victim with "a two by four" board but testified he "didn't mean to hurt" the victim, he just "panicked" when the victim "came onto" him with homosexual advances. In explaining why an assault and battery instruction was required in Boone we said, "one cannot be convicted of assault and battery 'without an intention to do bodily harm -- either an actual intention or an intention imputed by law,' but an intent to maim, disfigure or kill is unnecessary to the offense." 14 Va. App. at 133, 415 S.E.2d at 251. Striking a person with a board, depending upon the circumstances, may be either simple assault and battery or may be unlawful or malicious wounding depending upon the perpetrator's intent. In Boone the evidence would have permitted the fact finder to conclude that Boone delivered the blows with an intent to do bodily harm but not necessarily with the intent to maim, disable, disfigure, or kill and, thus, the evidence required that the jury be instructed on misdemeanor assault and battery.