
    Wytheville.
    Hay v. Commonwealth.
    June 19, 1924.
    
      Mayhem — Unlawful Shooting with Intent to Main — Intent.—In the instant case accused was convicted of unlawful shooting and wounding. No witness for the Commonwealth testified that the shooting was inten- . tional, or to any fact or facts from which an intentional shooting' could be inferred. On the contrary, the testimony of the witnesses for the Commonwealth plainly showed that the shooting was unintentional.
    
      Held: That the verdict of the jury should be set aside and the case remanded for a new trial.
    Error to a judgment of the Circuit Court of Dickenson county.
    
      Reversed.
    
    The opinion states the case.
    
      S. H. & Geo. C. Sutherland, for the plaintiff in error.
    
      John R. Saunders, Attorney-General, and Leon M. Bazile and Lewis H. Machen, Assistant Attorney s-General, for the Commonwealth.
   Burks, J.,

delivered the opinion of the court.

The indictment charged that the accused, Daniel Hay, “unlawfully and feloniously did shoot one Luther Ratcliff, with intent to maim, disable, disfigure and kill the said Luther Ratcliff, against the peace and dignity of the Commonwealth.” The verdict of the jury found the defendant “guilty of unlawful shooting and wounding, as charged in the within indictment,” and fixed his punishment at confinement in the penitentiary for two years.

There were several assignments of error, but it is unnecessary to notice any of them except that assigning that the verdict is without evidence to support it.

No witness for the Commonwealth testified that the shooting was intentional, or to any fact or facts from which an intentional shooting could be inferred. On the contrary, the testimony of the witnesses for the Commonwealth plainly shows that the shooting was unintentional.

The main witness for the Commonwealth details the circumstances attending the shooting as follows: “I had my right arm around his back and a hold of his right arm, when Luther Ratcliff rode up, and said ‘howdy’ or ‘hello there boys.’ The defendant replied ‘hello there buddy,’ and just as Ratcliff got his horse hitched, the pistol went off, and I said to the defendant, ‘you have killed some one or shot somebody.’ Luther Ratcliff walked on toward the schoolhouse, and just as he come into the light that shone from and out of the. schoolhouse door, the defendant said, ‘Y, that’s the mail boy; I would not hurt him for the world.’ ”

On cross-examination, he stated: “It was just an instant from the time they spoke to each other till the pistol fired. The defendant neither raised, lowered or moved the pistol in any way, when it went off, but just seemed to be still.”

The accused and the boy shot had always been good friends and are still friendly.

It is so plain that the shooting was unintentional that it would be a waste of time to recite the evidence in detail. It is equally unnecessary to cite the .authorities on unlawful maiming under section 4402 of the Code. They may be found in the notes to that section. ‘ j

Thé judgment of the circuit court will be reversed, the verdict of the jury set aside, and the case remanded for a new trial, if the Commonwealth shall be so advised.

Reversed.  