
    Richmond
    Hugh Tompkins v. Commonwealth of Virginia.
    February 24, 1941.
    Record No. 2380.
    Present, Holt, Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
    
      
      S. H. & Geo. C. Sutherland, for the plaintiff in error.
    
      Abram P. Staples, Attorney-General, and Walter E. Rogers, Special Assistant, for the Commonwealth.
   Gregory, J.,

delivered the opinion of the court.

The accused, Hugh Tompkins, was indicted for unlawfully and maliciously cutting Columbus Perrigin. He was tried, found guilty by a jury, and sentenced to two years in the penitentiary.

The accused contends that the indictment found against him is not in compliance with the statute (Code, §4402), in that it fails to charge that the cutting was done with the intent to maim, disable, or kill Perrigin. The language used in the indictment is that he “did unlawfully and maliciously cut, stab and wound one Columbus Perrigin against the peace and dignity of the Commonwealth of Virginia.”

Under this indictment the accused was found guilty of a felony; he asserts, however, that the indictment was for a misdemeanor.

We need not advert to the evidence because the indictment, under our recent cases, is not sufficient. In Williamson v. Commonwealth, 165 Va. 750,181 S. E. 351, we held invalid an indictment which did not meet the requirements of the statute. There it was urged, just as is done in the present case, that the accused and the court knew that the accused was being tried for a felony, and he did not protest. See also, Lewis Merritt v. Commonwealth, 164 Va. 653, 180 S. E. 395.

Under Code, §4879, a judgment in a criminal case shall not be reversed on account of any objection to the indictment made after verdict unless the indictment be so defective as to be in violation of the Constitution. Where no felony is alleged in an indictment, however, it would be violative of constitutional rights to find one guilty of that grade of offense. Section 4879 does not cure the defect' in the indictment now before us.

The judgment is reversed and the case is remanded.

Reversed.  