James Edward Irvine, s/k/a James Irvine, Sr. v. CW

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia
JAMES EDWARD IRVINE, S/K/A
JAMES EDWARD IRVINE, JR.
MEMORANDUM OPINION * BY
v. Record No. 2910-96-3 JUDGE NELSON T. OVERTON
JANUARY 13, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKBRIDGE COUNTY
George E. Honts, III, Judge
H. David Natkin, Assistant Public Defender,
for appellant.
Eugene Murphy, Assistant Attorney General
(Richard Cullen, Attorney General; Monica S.
McElyea, Assistant Attorney General, on
brief), for appellee.
James Irvine (defendant) was convicted of malicious wounding
in violation of Code § 18.2-51. Defendant argues on appeal that
he committed the wounding in the heat of passion, not with
malice, and therefore cannot be guilty of malicious wounding.
Because we find the evidence sufficient to prove malice, we
affirm.
The parties are fully conversant with the record in the
cause, and because this memorandum opinion carries no
precedential value, no recitation of the facts is necessary.
"Unlawful wounding is a lesser included offense of malicious
wounding. The element of malice constitutes the distinction
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
between malicious and unlawful wounding." Miller v.
Commonwealth, 5 Va. App. 22, 24, 359 S.E.2d 841, 842 (1987)
(citing Barrett v. Commonwealth, 231 Va. 102, 105-06, 341 S.E.2d
190, 192 (1986)). "Implied malice exists when any purposeful,
cruel act is committed by one individual against another without
any, or without great provocation." Pugh v. Commonwealth, 223
Va. 663, 668, 292 S.E.2d 339, 341 (1982). If, upon review of the
evidence, we find that the trial court was plainly wrong when it
decided that defendant was acting with malice, we must reverse.
"In order to determine whether the accused acted in the heat of
passion, it is necessary to consider the nature and degree of
provocation as well as the manner in which it was resisted."
Miller, 5 Va. App. at 25, 359 S.E.2d at 842 (citing Ballard v.
Commonwealth, 156 Va. 980, 993, 159 S.E. 222, 226 (1931)).
In the instant case, it is abundantly clear that defendant
acted with malice. The only provocations offered by him to
explain his attack were the profanities issued towards him by the
victim, the act of the victim in exiting his pickup truck, and
the victim's close physical proximity to defendant's wife. Words
alone are not adequate provocation. See Martin v. Commonwealth,
184 Va. 1009, 1016-18, 37 S.E.2d 43, 46-47 (1946). Neither
exiting one's truck nor simply sitting next to another's wife
provides adequate justification either. Under these
circumstances we cannot hold that defendant's reaction, to
repeatedly strike the victim with a clawed roofing hammer,
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constituted a reasonable response to the victim's actions.
Because we find sufficient evidence to support the trial
court's finding that defendant acted with malice, we affirm the
conviction.
Affirmed.
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