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May 31, 2016 Articles

Assaults and Life

When the victim of an assault dies from the strike, only the homicide remains. Courts that disregard this rule violate the prohibition against judicial creation of crimes.

By Kele Onyejekwe

The purpose of assault law is to protect the integrity of the person. At common law, if the victim does not survive, the assault merges into the homicide and no longer has an independent existence. See 4 William Blackstone, Commentaries *204–17 (11th ed. 1791). Assault with intent to commit murder is the most serious assault at common law. Id. Criminal statutes, such as those in the United States Code, follow the common law. See, e.g., Rosemond v. United States, 134 S. Ct. 1240 (2014) (common-law principles continue to govern aiding and abetting law under 18 U.S.C. § 2). Unless a specific statute calls for it, a court creates a crime if it convicts a defendant for an assault when death results.

After two trials, Richie Fontaine was found not guilty of murder and manslaughter. Fontaine v. People, 2015 V.I. Supreme LEXIS, at *14 (V.I. 2015). He was found guilty of assault with intent to commit murder. Id. But, of course, the victim died from this assault, according to the prosecution. The defendant argued on appeal that an assault does not lie when death results. But the Supreme Court of the Virgin Islands affirmed the conviction, rejecting his argument. Id. Focusing on Virgin Islands assault provisions, I review the grave implications of an assault conviction being upheld when the victim died.

I first discuss the prohibition against judicial creation of crimes, and then I show why , when read as a whole, the Virgin Islands first-degree assault statute, 14 V.I. Code § 295, could not apply where death results. In turn, I review courts’ decisions and the writings of learned authorities, and I apply rules of construction for the conclusion that an assault does not lie if death results.

The Prohibition Against Judicial Creation of Crimes
The prohibition against judicial creation of crimes follows the principle of separation of powers that underlies our tripartite system of government. See U.S. Const. art. I, § 1; 48 U.S.C. § 1574. Only the legislature enacts crimes. This is further expressed in the doctrine nulla poena sine lege, meaning that where the legislature has not enacted it, “there is no crime, and can be no punishment.” Sparf v. United States, 156 U.S. 51, 88 (1895); John Calvin Jeffries Jr., “Legality, Vagueness, and the Construction of Penal Statutes,” 71 Va. L. Rev. 189 (1985). In other words, it is fundamental to our system of justice that a court should not create a crime.

To show that the court in Fontaine’s case created a crime, I first demonstrate that the Virgin Islands first-degree assault statute applies only where death does not result. This requires an examination of the statute as a whole.

Statutes Must Be Examined as a Whole
The Virgin Islands first-degree assault statute provides:

Assault in the first degree
(1) with intent to commit murder, assaults another;
(2) with intent to kill, administers or causes to be administered to another, any poison or other noxious or destructive substance or liquid, and death does not result;
(3) with intent to commit rape, sodomy, mayhem, robbery or larceny, assaults another;

or shall be imprisoned not more than 15 years;
(4) commits an act under paragraphs (1) or (2) or (3) of this section in an act of domestic violence as defined in Title 16 Virgin Islands Code, chapter 2, section 91(b) shall be sentenced to not less than 2 years and not more than 20 years and shall be fined not less than $1,000.

14 V.I. Code § 295.

To interpret such a statute, courts looks “not only to the particular statutory language, but to the design of the statute as a whole and its object and policy.” Crandon v. United States, 494 U.S. 152, 158 (1990). Viewed as a whole, this section does not apply when death results. By its terms, section 295(2) does not apply where death results. Although section 295(1) is silent, assault law protects the integrity of a living person. As a whole, 14 V.I. Code § 295(1) and (2) are best read as one sentence that is applicable where “death does not result” because assault law protects only the living.

To protect the living, as assault law aims, no non-frivolous difference exists between section 295(1)’s intent to murder and section 295(2)’s intent to kill. See, e.g., State v. Earp, 319 Md. 156, 167 (Md. 1990) [login required] (“Our cases have sometimes used the terms ‘intent to kill’ and ‘intent to murder’ interchangeably. In most cases, the meaning is clear and the mixing of terms poses no real possibility of misunderstanding.”); Commonwealth v. Henson, 394 Mass. 584, 591 (Mass. 1985) [login required] (“The difference is that in the lesser crime [assault with intent to kill] there need be no proof of malice and thus only such an intention to kill as would amount to voluntary manslaughter if the victim died.”); Commonwealth v. Ennis, 20 Mass. App. Ct. 263, 266–67 (Mass. App. Ct. 1985) [login required] (“[I]f the evidence shows an intent to kill under such circumstances as to constitute a murder, if death had followed, the party may be convicted of assault with intent to murder.”).

Further, nothing suggests that section 295(1) assaults are less injurious to victims than section 295(2) assaults to merit a different interpretation. Chief Judge Scirica of the U.S. Court of Appeals for the Third Circuit writes that section 295 assaults are likeattempts. See Virgin Islands v. Issac, 50 F.2d 117, 1185 (3d Cir. 1995) (“[T]he definitions of those assaults classified as felonies in the Virgin Islands Code bear a striking resemblance to attempts to murder or cause great bodily harm.”). Attempts must be unsuccessful. 14 V.I. Code § 331. An assault with intent to murder is essentially an attempt; therefore, the murder must be unsuccessful.

Moreover, the assault statute is in the present tense and uses the pronoun “another.” See United States v. Wilson, 503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in construing statutes.”). The homicide statute, on the other hand, is in the past tense and does not mention “another.” This further demonstrates that a section 295(1) prosecution is authorized only where death does not result. Compare 14 V.I. Code § 295(1) (“whoever with intent to murder, assaults another”) with 14 V.I. Code § 922(a)(1) (“All murder which is perpetrated”). The pervasive use of the present tense throughout section 295 demonstrates its orientation for the present. See Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 59 (1987) (“One of the most striking indicia . . . is the pervasive use of the present tense.”).

“Another” is a pronoun. It means “a person other than oneself or the one specified: He told her he loved another.Id. Section 295(1)’s use of “another,” without a modifier, refers to the living person. The pronoun “another” is completely missing from the homicide chapter of the Virgin Islands Code. See 14 V.I. Code §§ 921–929.

Words are known by the company they keep, or noscitur a sociis. Yates v. United States, 135 S. Ct. 1074, 1085 (2015). Every word in section 295 applies where death does not result. For example, section 295(2) by its terms applies only when death “does not result.” Section 295(3) covers rape, sodomy, mayhem, robbery, or larceny, but not death. Likewise, section 295(4) applies to 14 domestic violence offenses, none involving death. 16 V.I. Code § 91 (definitions); compare 14 V.I. Code § 921 (homicides) with 14 V.I. Code § 295 (first-degree assault).

There is another reason why an assault cannot be read to apply if the victim does not survive. Section 295 prescribes the same penalty—no more than 15 years in jail—for all crimes under it, except domestic violence offenses, which carry 20 years. If section 295 applied when death results, the legislature would have prescribed an enhanced penalty. See United States v. Anderson, 108 F.3d 478, 483 (3d Cir. 1997) [login required]. In reviewing the federal carjacking statute, 18 U.S.C. § 2119 [login required], the Anderson court explained that when death results, penalties are enhanced. “It is apparent . . . that Congress did not intend for death or serious bodily injury to be a prerequisite to every carjacking conviction, since Congress has provided for enhanced penalties when a carjacking does, in fact, result in death or serious bodily injury,” writes the court. Similarly,if section 295 was intended to punish where death results, there would have been enhanced penalties, not the same penalties where death does not result.

Courts’ Decisions
Courts have long followed the common law and held that assaults apply only where death does not result, except where there is a clear statutory grant. The Indiana Supreme Court is a good example:

The assault and battery which results in death must belong either to felonious homicide embraced in murder or manslaughter; or to justifiable or excusable homicide, as the execution of a felon by due course of law, or in a proper measure of self-defense. In either event, the simple assault and battery no longer remains as such to be punished. It is either merged, justified or excused.

State v. Hattabough, 66 Ind. 223, 227 (Ind. 1879).

Alabama, California, Maryland, Massachusetts, Michigan, and New York are among states that follow the common law. State v. Jenkins, 307 Md. 501, 515 (Md. 1986) (“[T]he intent element of assault with intent to murder requires proof of a specific intent to kill under circumstances such that, if the victim had died, the offense would be murder.”); Commonwealth v. Henson, 394 Mass. 584, 591 (Mass. 1985) [login required]; People v. Ireland, 450 P.2d 580 (Cal. 1969); People v. Moran, 246 N.Y. 100, 102 (N.Y. 1927) (“the homicide and the assault merged therein”); People v. Moore, 2002 Mich. App. LEXIS 644, at *33–34 (Mich. Ct. App. Apr. 30, 2002); Hall v. State, 348 So. 2d 870, 873 (Ala. Crim. App. 1977) (“requires evidence of assault with an intent to take life under circumstances which, if successful, would result in murder.”)

Other examples are found in Florida, Georgia, Illinois, Pennsylvania, Virginia, and Washington. See Commonwealth v. Cooley, 465 Pa. 35, 38 (Pa. 1975) (“Cooley was convicted by a jury of murder in the first degree for the death of Butts and of assault with intent to murder for the shooting of Morris [who survived].”); Rouzie v. Commonwealth, 215 Va. 174, 178 (Va. 1974); People v. Coolidge, 26 Ill. 2d 533, 536–37 (Ill. 1963) (“[T]he assault is made under such circumstances that, if death had ensued, the killing would have been murder.”); Wright v. State, 168 Ga. 690, 692 (Ga. 1929); Davis v. State, 25 Fla. 272, 277 (Fla. 1889) (“All the elements that enter into murder in the first degree are contained in an assault with intent to murder except the actual killing.”); In re Pers. Restraint of Burchfield, 111 Wn. App. 892, 900 (Wash. Ct. App. 2002) (where statute permits the charges, “we hold that the Legislature did not intend to punish the purposeful shooting of a victim both as an assault and as manslaughter”).

Legal Authorities
Every learned authority in American criminal law writes that assault does not apply where the victim does not survive. Francis Wharton teaches us that “[w]henever assault with intent to kill is committed, and the circumstances are such that if death had ensued, the killing would have constituted murder at common law, the offense, assault with intent to murder, under the statute, is complete.” A Treatise on the Law of Homicide in the United States §138, at 206 (3d ed. 1907). Blackstone writes the same thing. 4 William Blackstone, Commentaries *204–17 (11th ed. 1791).

Joel Prentiss Bishop notes that “for assault with intent to commit murder, it is immaterial whether the murder would have been, if committed, in the first or second degree.” 2 Commentaries on the Criminal Law § 742, at 412 (9th ed. 1923). The U.S Supreme Court explains Bishop’s influence in Apprendi v. New Jersey, 530 U.S. 466, 512 (2000) [login required]. “In the half century following publication of Bishop’s treatise, numerous courts applied his statement of the common-law understanding; most of them explicitly relied on his treatise,” writes the Court.

American Jurisprudence defines assault with intent to murder as follows: “The elements of an assault with intent to commit murder are: (1) an assault; (2) with an actual intent to kill; and (3) that, if successful, would make the killing murder.” 175 Am. Jur. 2d Homicide § 586 (emphasis added).

Journalists report assault with intent to commit murder only where no death results. Therefore, the idea that assaults belong to the living is part of our popular culture. See, e.g., Keith L. Alexander, “Michael Davis, 19, Charged with Murder in April Attack,” Wash. Post, May 10, 2012 (“Police … charged Michael W. Davis with first-degree murder in the death of Gary Dederich. Davis was also charged with assault with intent to kill while armed for allegedly sneaking up on people [who survived].”).

The Rule of Lenity
The rule of lenity requires a court to construe an ambiguous penal statute in favor of the accused. Yates v. United States, 135 S. Ct. 1074, 1088 (2015) (“[W]e would invoke the rule that ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’”). If there is ambiguity as to whether section 295(1)’s silence means that it could apply where there is death, the rule of lenity counsels differently. It is undeniable that lenity requires a reading that section 295(1) is available only when the victim survives. This is the only result that is in favor of the accused.

An assault may only lie where death does not result. This is clear from a review of the first-degree assault provision of the Virgin Islands as a whole, courts’ decisions, the writings of learned authorities, and proper application of statutory construction rules. A court that convicts for assault resulting in death impermissibly creates a crime. And when a court creates a crime, it assaults the core of our constitutional system.

Keywords: criminal litigation, assault, assault with intent to kill, assault with intent to commit murder, judicial creation of offenses


Kele Onyejekwe is an appellate public defender at the Office of the Territorial Public Defender on St. Thomas and coeditor in chief of the Appellate Practice Committee newsletter.

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