State v. Wright
In State v. Wright, 200 W.Va. 549, 490 S.E.2d 636 (1997), the Court had the opportunity to review the issue of whether an instruction on wanton endangerment should be provided as a lesser included offense to the crime of malicious assault. Adhering to the two-part inquiry formula enunciated in Jones, the Wright Court examined both legal and factual issues.
In the legal analysis, the Court acknowledged that an offense is considered a lesser included offense only where it is impossible to commit the greater offense without having first committed the lesser offense. 200 W.Va. at 554, 490 S.E.2d at 641.
The Court also examined the elements of the two crimes and concluded that "wanton endangerment also carries a less severe penalty than malicious assault." 200 W.Va. at 553, 490 S.E.2d at 640.