Hummer v. Commonwealth
In Hummer v. Commonwealth, 122 Va. 826, 94 S.E. 157 (1917), the Supreme Court recognized the error of a defendant being convicted of a "higher offense."
The defendant was indicted and arraigned for unlawful wounding. See id. at 827, 94 S.E. at 157.
When the clerk read the indictments to the jury, the trial court permitted the clerk to read the section of the Code which included the definition of malicious wounding. See 122 Va. at 827-28, 94 S.E. at 157-58.
The trial court refused an instruction stating that the defendant could not be convicted of malicious wounding. See id. at 828, 94 S.E. at 158.
The Supreme Court opined that the error was not harmless. See 122 Va. at 829, 94 S.E. at 158.
"Both prisoners were convicted by the jury under instructions which permitted them to find the prisoners guilty of a higher offense, and one carrying a higher maximum and minimum punishment, than that with which they were charged." Id.