dissenting.
I am unable to agree that the method followed in giving the jury additional instruction on the question of punishment was not reversible error. The accused was charged with malicious wounding under the maiming statute. (Code, *998Section 4402). The jury found him guilty, “as charged in the indictment,” and fixed his punishment “at six (6) months in jail and a fine of $50.00.” The effect of this was to find him not guilty of malicious wounding but guilty of unlawful wounding. Lee v. Commonwealth, 135 Va. 572, 115 S. E. 671.
Only three witnesses testified as to what happened. One of these was Phillips, who said that he simply asked the accused to pay him the seventy-five cents he owed him, whereupon the accused cursed him and started after him, and while he was trying to get away the accused picked up a potato peeler and stabbed him on the neck; that his wound was treated and bandaged by a doctor and he had to stay in for two days on account of it.
The accused, on the other hand, testified that he told Phillips that he did not owe him anything, but would pay him anyway, and Phillips replied that he would either pay it to him or to an undertaker; that Phillips thereupon attacked the accused with a butcher knife, got him in a corner and the accused grabbed the potato .peeler and stabbed Phillips with it. The accused was corroborated by Fannie Kinney, on whom he was calling when Phillips came into the room. She testified that Phillips was trying to cut Robinson with the butcher knife when Robinson stabbed him.
The possible verdicts under the evidence were malicious wounding, unlawful wounding, assault and battery, or not guilty.
The court had already instructed the jury on the punishments for malicious wounding and unlawful wounding. After they had retired to their room they knocked on the door, the sheriff answered, and “was informed that the jury wanted further instruction on the question of punishment. He reported this to the Clerk who took a written statement of the law as contained in Section 4402 of the Code, and gave it to the sheriff who went back into the jury room and gave the jury this paper, which had not been *999seen by accused or his counsel, and without securing permission of the Court.”
Since the jury had already been instructed on malicious wounding and unlawful wounding, it is probable that the “further instruction on the question of punishment” that they wanted had to do with whether there was any punishment they could administer other than those they had already been instructed on. Their inquiry was answered by receiving what they had already been told, which was equivalent to telling them that the only punishment was for malicious wounding or unlawful wounding. They were not told of the punishment for assault and battery, of which they could have found the defendant guilty. Under the circumstances, it is a fair inference that the point of their inquiry was whether they might find the defendant guilty of an offense carrying less punishment than malicious wounding or unlawful wounding. At least the court should have inquired about that, and should have fully instructed the jury on the range of possible verdicts.
I would reverse the case and not condone the procedure that was followed. The duty of seeing to a correct procedure on so vital a matter should be placed on the court and not on the defendant.