§61-2-9. Malicious or unlawful assault; assault; battery; penalties.
(a) If any person maliciously shoots, stabs, cuts or wounds any person, or by any means cause him or her bodily injury with intent to maim, disfigure, disable or kill, he or she, except where it is otherwise provided, is guilty of a felony and, upon conviction thereof, shall be punished by confinement in a state correctional facility not less than two nor more than ten years. If the act is done unlawfully, but not maliciously, with the intent aforesaid, the offender is guilty of a felony and, upon conviction thereof, shall either be imprisoned in a state correctional facility not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding $500.
(b) Assault. — Any person who unlawfully attempts to commit a violent injury to the person of another or unlawfully commits an act that places another in reasonable apprehension of immediately receiving a violent injury is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than six months or fined not more than $100, or both fined and confined.
(c) Battery. — Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature to the person of another or unlawfully and intentionally causes physical harm to another person is guilty of a misdemeanor and, upon conviction thereof, shall be confined in jail for not more than twelve months or fined not more than $500, or both fined and confined.
(d) Any person convicted of a violation of subsection (b) or (c) of this section who has, in the ten years prior to the conviction, been convicted of a violation of either subsection (b) or (c) of this section where the victim was a current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabited, a parent or guardian or the defendant’s child or ward at the time of the offense or convicted of a violation of section twenty-eight of this article or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this section or section twenty-eight of this article when the victim has a present or past relationship, upon conviction, is subject to the penalties set forth in section twenty-eight of this article for a second, third or subsequent criminal act of domestic violence offense, as appropriate.
Notes of Decisions
Cited in
163
cases (
27 in the last 5 years), 1973–2026 · leading case:
State v. McGilton, 729 S.E.2d 876 (W. Va. 2012).
State v. McGilton, 729 S.E.2d 876 (W. Va. 2012).
· cites it 21× “5 During the first day of trial, however, the circuit court granted the petitioner’s motion to dismiss the single count of assault during commission of, or attempt to commit, a felony under W.”
State v. Easton, 510 S.E.2d 465 (W. Va. 1998).
· cites it 21× “Thereafter, Easton and True were each charged with two criminal offenses arising from their actions on September 8, 1996, involving the patient 5 : malicious or unlawful assault, a felony pursuant to W. Va.Code § 61-2-9(a) (1978) (Repl.Vol.1997), 6 and willful creation, by a…”
State of West Virginia v. Darius Henning, 793 S.E.2d 843 (W. Va. 2016).
· cites it 24× “offenses, which are set forth in West Virginia Code § 61-2-9 (2014), 6 the jury was *196 instructed on the elements of each crime.”
State of West Virginia v. James Wilkerson, 738 S.E.2d 32 (W. Va. 2013).
· cites it 9× “CONCLUSION For the reasons set forth above, the final order of the Circuit Court of Ohio County entered on July 6, 2011, is affirmed.”
State of West Virginia v. Steward Butler, 799 S.E.2d 718 (W. Va. 2017).
· cites it 4× “The State may move forward with its prosecution on Counts II and IV charging the defendant with battery under West Virginia Code § 61-2-9. B. Certified Question The State asserts that the circuit court erred in dismissing Counts I and III of the indictment subsequent to this…”
State of West Virginia v. Zachary Elijah Bland, 801 S.E.2d 478 (W. Va. 2017).
· cites it 9× “In that case, the defendant was charged under West Virginia Code § 61-2-9 with malicious assault but convicted of misdemeanor assault, another offense within the same statute.”
State v. Julius, 408 S.E.2d 1 (W. Va. 1991).
· cites it 4× “Code, 61-2-1 (1987); attempted murder in violation of W.”
United States v. Donald Covington, 880 F.3d 129 (4th Cir. 2018).
· cites it 3× “LORETTA COPELAND BIGGS, District Judge: The government appeals the district court’s determination that the West Virginia criminal offense of unlawful wounding, W. Va. Code § 61-2-9 (a), is not a crime of violence under the force clause of § 4B1.”
State Ex Rel. Watson v. Hill, 488 S.E.2d 476 (W. Va. 1997).
· cites it 4× “On August 16, 1993, a jury found the Petitioner guilty of malicious assault, a felony defined in West Virginia Code section 61-2-9(a) (1994). Based on an information stating that the Petitioner had two prior felony eon-.”
United States v. Cobbs, 274 F. Supp. 3d 390 (S.D.W. Va 2017).
· cites it 14× “During' that hearing, I determined that the defendant’s prior unlawful wounding conviction under W. Va. Code § 61-2-9 (a) constituted a pri- or conviction for a “crime of violence” under the United States Sentencing Commission Guidelines Manual (“USSG”) §§ 2K2.”
— W. Va. Code § 61-2-9(a) — 68 cases
State v. McGilton, 729 S.E.2d 876 (W. Va. 2012).
“5 During the first day of trial, however, the circuit court granted the petitioner’s motion to dismiss the single count of assault during commission of, or attempt to commit, a felony under W.”
State v. Easton, 510 S.E.2d 465 (W. Va. 1998).
“Thereafter, Easton and True were each charged with two criminal offenses arising from their actions on September 8, 1996, involving the patient 5 : malicious or unlawful assault, a felony pursuant to W. Va.Code § 61-2-9(a) (1978) (Repl.Vol.1997), 6 and willful creation, by a…”
State Ex Rel. Watson v. Hill, 488 S.E.2d 476 (W. Va. 1997).
“On August 16, 1993, a jury found the Petitioner guilty of malicious assault, a felony defined in West Virginia Code section 61-2-9(a) (1994). Based on an information stating that the Petitioner had two prior felony eon-.”
— W. Va. Code § 61-2-9(b) — 10 cases
State of West Virginia v. Darius Henning, 793 S.E.2d 843 (W. Va. 2016).
“offenses, which are set forth in West Virginia Code § 61-2-9 (2014), 6 the jury was *196 instructed on the elements of each crime.”
State of West Virginia v. James Wilkerson, 738 S.E.2d 32 (W. Va. 2013).
“CONCLUSION For the reasons set forth above, the final order of the Circuit Court of Ohio County entered on July 6, 2011, is affirmed.”
State of West Virginia v. Zachary Elijah Bland, 801 S.E.2d 478 (W. Va. 2017).
“In that case, the defendant was charged under West Virginia Code § 61-2-9 with malicious assault but convicted of misdemeanor assault, another offense within the same statute.”
— W. Va. Code § 61-2-9(c) — 23 cases
State v. Easton, 510 S.E.2d 465 (W. Va. 1998).
“Thereafter, Easton and True were each charged with two criminal offenses arising from their actions on September 8, 1996, involving the patient 5 : malicious or unlawful assault, a felony pursuant to W. Va.Code § 61-2-9(a) (1978) (Repl.Vol.1997), 6 and willful creation, by a…”
State of West Virginia v. James Wilkerson, 738 S.E.2d 32 (W. Va. 2013).
“CONCLUSION For the reasons set forth above, the final order of the Circuit Court of Ohio County entered on July 6, 2011, is affirmed.”
State of West Virginia v. Steward Butler, 799 S.E.2d 718 (W. Va. 2017).
“The State may move forward with its prosecution on Counts II and IV charging the defendant with battery under West Virginia Code § 61-2-9. B. Certified Question The State asserts that the circuit court erred in dismissing Counts I and III of the indictment subsequent to this…”
— W. Va. Code § 61-2-9(d) — 1 case
State of West Virginia v. Zachary Elijah Bland, 801 S.E.2d 478 (W. Va. 2017).
“In that case, the defendant was charged under West Virginia Code § 61-2-9 with malicious assault but convicted of misdemeanor assault, another offense within the same statute.”
— W. Va. Code § 61-2-9(e) — 1 case
State v. Easton, 510 S.E.2d 465 (W. Va. 1998).
“Thereafter, Easton and True were each charged with two criminal offenses arising from their actions on September 8, 1996, involving the patient 5 : malicious or unlawful assault, a felony pursuant to W. Va.Code § 61-2-9(a) (1978) (Repl.Vol.1997), 6 and willful creation, by a…”
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