concurring in result.
I agree with a majority of the court that the judgment ought to be reversed on the ground that the evidence, accepted in the light most favorable to the Commonwealth, is not sufficient to show that the offense charged was committed with malicious intent. At most, there is proof only of an unlawful act. The grounds of reversal in the opinion of the Chief Justice are, I believe, contrary to reason and authority. It looks to me like making bad law to accomplish a good purpose, a purpose which can be attained under settled and accepted principles.
The opinion of the Chief Justice holds, first, that the skin of McAllister not having been broken by the assault, there was no wounding, and, second, that, under the indictment, no conviction could have been had for bodily injury, because the means of such injury is not set forth in the indictment.
It is conceded that under many early English decisions, *418based on an English statute, which was never adopted in Virginia, there could be no wound without a solution or fracture of the skin by a weapon other than that with which the human body is naturally provided. Harris v. Commonwealth, 150 Va. 580; 142 S. E. 354, 58 A. L. R. 1316; State v. Gibson, 67 W. Va. 548, 68 S. E. 295, 28 L. R. A. (N. S.) 965.
The explanation of the reasons for the English decisions may be as stated in Harris v. Commonwealth, supra; but these reasons have never prevailed in Virginia. Justice has been said to be the product of the changing definitions of a man’s race and the age in which he lives.
Virginia Code, 1942, (Michie), section 4402, broadens the English conception of maiming and enlarges its definition. It looks riot to the preservation of the physical availability of the person for defense or military service, but to the maintenance and protection of the completeness of the human members and organs and the preservation of their functions. Under it, the offense of maliciously 'causing a person bodily injury by any means is cognate with the offense of shooting, stabbing, cutting, or wounding a person. The offenses, although caused by separate means, are of the same degree and the punishment is the same. The distinction between them is so indistinct that they are embraced within the same statute.
The word “wound” has often been defined by textwriters, lexicographers, and in decisions of the courts of this country.
As a verb, the form in which it is used in the statute, Webster’s International Dictionary (2d Ed.) Unabridged, defines it as meaning “To hurt by violence”; as a noun, “An injury to the body of a person or animal, esp. one caused by violence, by which the continuity of the covering, as skin, mucous membrane, or conjunctiva, is broken.”
It will be observed that as a noun, it is not restricted to instances where the skin has been broken.
In the decisions, we find the following.
In State v. Capawanna, 118 N. J. L. 429, 193 A. 902:
“ # # * it cannot be denied that the complaining witness *419was wounded. The definition of ‘wound’ is as follows: ‘A solution of the natural continuity of any of the tissues of the body. Taylor Med. Jurispr. In jurisprudence a wound may be said to exist even if there is no effusion of blood or severing of the skin. No question is raised as to the nature of the tissue damaged, be it skin and appendages, bone, joint or internal organ. * *. #’ 2 Bouvier’s Law Dictionary, Unabridged, Rawle’s Third Revision, p. 3496. * * * the breaking of the jawbone, clearly, under the definitions, amounting to a wounding.”
In Gatlin v. State, 18 Ga. App. 9, 89 S. E. 345:
“In construing section 119, Penal Code, 1910, as to letters threatening to maim, wound, etc., the word ‘wound’ should not be given a strained or technical signification, but its plain, obvious, and common sense meaning should be attached to it. Under such a construction a ‘wound’ does not necessarily import a breaking of the skin, but includes injuries of every kind which affect the body, whether thev are cuts, lacerations, fractures, or bruises. 4 Words and Phrases (2d Series) 1347; 3 Bouvier’s Law Dict. (Rawle’3d Rev.) 3496; State v. Owen, 5 N. C. 452, 4 Am. Dec. 571; State v. Hammerli, 60 Kan. 860, 58 P. 559 (citing Words and Phrases, First and Second Series, Wound).”
In People v. Durand, 307 Ill. 611, 139 N. E. 78:
“In medicine the word ‘wounds’ means injuries of every description that affect either the hard or soft parts of the body, and it comprehends bruises, contusions, fractures, luxations, etc. In law the word means any lesion of the body, and the correct definition of a lesion is a- hurt, loss, or injury. 2 Pope’s Legal Definitions, 1684; Thompson v. Loyal Protective Ass’n, 167 Mich. 31, 132 N. W. 554. Under the statute of 9 Geo. IV (chapter 21, sec. 12), it has been held in England that in criminal cases to make a wound there must be an injury to the person by which the skin is broken through. 2 Bouvier’s Law Diet., p. 851. The decisions under this statute have no binding force in this state, as the statute in question was never the law in this state.”
I cannot agree that Harris v. Commonwealth, supra, upon *420which the Chief Justice relies, justifies his conclusion. The facts in that case were: A foreman and a laborer got into a fight and the laborer struck the foreman with a stick causing “a slight bruise over, or near, the collar bone” without breaking the skin. The indictment charged that the accused “did make an assault on him, the said L. E. Collins, feloniously and maliciously did strike and wound, with intent to him, the said L. E. Collins, then and there, to maim, disfigure, disable, or kill.” Prentis, P., in the course of the opinion, said, “This indictment is too narrow in its terms to include as a felony the bruise which was, in fact, inflicted upon Collins by the accused'. If the indictment had also charged that the assault and bodily injury were done maliciously with the felonious intent to maim, etc., the evidence w;ould have been sufficient to support the conviction of felony.” (Italics supplied.)
We have been cited to no Virginia case, nor have I found one, in which it has been held that a broken bone was not a wound.
Neither in the above case, nor in State v. Gibson, supra, cited in support, was a broken bone involved. So much of the opinion as is quoted from the earlier cases relating to the matter of broken bones may be regarded simply as dicta.
Under the view of the Chief Justice, if the defendant, with his fists, had fractured the skull of McAllister, had dislocated his vertebrae, or grievously bruised his spleen, kidneys, or intestines, without breaking the internal or external skin, he would not have caused a wound. This is so opposed to the ordinary and commonly accepted meaning of the word “wound,” and to what seems to me to be common sense, that I am unable to accept the conclusion as correct. If a fractured skull, a broken vertebra or rib, is not a “wound,” what is it?
That we have not felt the English decisions to be binding on us, in view, of our statute, is evidenced by the case of Shackelford v. Commonwealth, ,183 Va. 423, 32 S. E. (2d) 682. There a bodily injury was inflicted by the fists of the accused, and we disregarded the English requirement that *421the injury be caused by a weapon other than that which nature provides for the human body.
In State v. Coontz, 94 W. Va. 59, 117 S. E. 701, a blow from the fist was also held sufficient as a means of the offense.
One who suffers from a sprained ankle or broken ribs, whether caused by the violence of another or by accident, has been wounded in his person, or the word “wound” has lost the significance given to it by many courts, lexicographers, and the general public. Can we say that a man or a soldier suffering from shell shock did not receive a wound merely because his skin was not broken? If the. victim of the assault in this case had died as a result of the blows against his body, would he not have died as the result of wounds inflicted by his assailant?
The indictment against Johnson was in the express language of the statute. Students of the law are taught that indictments cannot be drawn in better form. There was no objection to the indictment. No bill of particulars was requested by the defendant.
Under the statutes of jeofails, Virginia Code, 1942, (Michie), sections 4878 and 4879, the failure to include in the indictment the means of the bodily injury, if that be a defect, was waived, and is not reversible error. The defendant makes no point of the omission, as evidenced by the following statement in his brief: “While in the instant case, though the indictment alleges bodily injury, and the jury could have so found under the indictment, yet the jury found the accused guilty of malicious wounding, and the evidence shows the accused did not wound the prosecutor.” His assignment of error is based solely upon the fact that the jury found the accused guilty of wounding instead of causing a bodily injury.
In Jones v. Commonwealth, 87 Va. 63, 12 S. E. 226, the court merely held that an indictment charging bodily injury and setting forth the means by which the injury was caused was sufficient. The judgment was reversed on grounds wholly unrelated to the present question.
*422In Anable v. Commonwealth, 24 Gratt. (65 Va.) 563, Moncure, President, referring to our criminal statutes, said that their chief object “was to prevent the acquittal of guilty persons on account of some nice technical distinction between the offense charged and the offense proved against a person accused of a criminal offense.” This statement we approved in Pflaster v. Commonwealth, 149 Va. 457, 141 S. E. 115, and in Branch v. Commonwealth, ante, p. 394, 35 S. E. (2d) 593.
This rule of decision, in pursuance of the policy of dispensing justice according to the very right of the case, was, by this court, early established in cases where the offenses charged were cognate, of the same degree, and the punishment the same, although the crimes were defined in separate statutes. In Dowdy v. Commonwealth, 9 Gratt. (50 Va.) 727, decided in 1852, the offense was receiving stolen property, knowing it to have been stolen. In Leftwich v. Commonwealth, 20 Gratt. (61 Va.) 716, decided in 1870, the offense was obtaining property by false pretenses. In Price v. Commonwealth, 21 Gratt. (62 Va.) 846, also decided in 1870, the offense was receiving stolen property, knowing it to have been stolen. In each of these cases it was held that upon an indictment simply charging larceny, the Commonwealth may show either that the subject of larceny was received with a knowledge that it was stolen, or that it was obtained by a false token or false pretenses.
In Amble’s Case, supra, proof that the accused obtained money by false pretenses was held to sustain an indictment for larceny.
The situation in the present case is analogous. Proof that the defendant “by any means” maliciously caused McAllister bodily injury, with intent to maim, disfigure, or kill should be sufficient to convict him of the offense of malicious wounding. The latter offense is cognate, of the same degree and subject to the same punishment. The language of the jury’s verdict did not change the degree of his offense, nor the measure of his punishment. There may be different *423elements in the offense of maiming; but they relate only to the means and not to the degree of the offense.
For the foregoing reasons, I cannot agree with the grounds for reversal assigned by the Chief Justice, and concurred in by Justices Holt and Browning.
Hudgins and Eggleston, JJ., concur in this opinion.