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Duncan v. Commonwealth4/8/2003
he would have gone 20 hours or more without any nutrition or hydration at all. Even Duncan -- who denied doing anything of the kind -- seemed to understand the danger of giving alcohol to a dehydrated six-month-old infant, when he declared: "I would never do that to my son. I would never do that."
I agree completely with Chief Judge Fitzpatrick that " ad the baby died as a result of ingesting the alcohol laced drink, a manslaughter indictment would have been the outcome." Ante at 13. I thus cannot say, as the majority does, that the trial court erred as a matter of law in finding Duncan guilty of felony child endangerment under Code § 18.2-371.1(B).
I thus respectfully dissent.
September 30, 2002.
Upon a Petition for Rehearing En Banc
Before the Full Court
On September 9, 2002 came the appellee, by the Attorney General of Virginia, and filed a petition praying that the Court set aside the judgment rendered herein on August 27, 2002, and grant a rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered herein on August 27, 2002 is stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve additional copies of the appendix previously filed in this case.
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