Therefore, the Commonwealth relied on a concert of action theory. Instruction 15 properly addressed that theory of the case. She argues that if the jury was not convinced beyond a reasonable doubt that she either directly, or through concerted action with Teresa Dixon, inflicted the lethal blow, she could, at most, have been found guilty under the murder indictment of one of those lesser offenses. Thus, she argues, she was entitled to have those offenses presented to the jury through the tendered instruction. To support a conviction for murder or manslaughter, the evidence must establish that a death occurred.
Malicious wounding requires proof of no such element.
The required elements to establish malicious wounding are a malicious shooting, stabbing, cutting or wounding or bodily injury by any other means with the intent to maim, disfigure, disable or kill. See Code 18.2-51. The intent to maim, disfigure, disable or kill is not necessarily included in the definition of murder or manslaughter. Each crime contains an element not contained in the other. Thus, malicious wounding is not a lesser-included offense embraced within the crime of murder or manslaughter.