VII. INTENT. It is well settled that mayhem must be committed on purpose, unlawfully and with intent to maim, but when the act is once proved, the law will presume that it was committed on purpose and with intent to maim, until the evidence shows the contrary; such as that it was done for the necessary self defence of the party against some great bodily harm attempted by the person maimed, and that there was no other means of preventing the mischief or other circumstances of a like kind, for unless this can be proved, the excuse that it was a sudden and unexpected Hardy v. Com., 17 Gratt. (Va.) 592; State v. Thompson, 30 Mo. 470. In Canada v. Com., 22 Gratt. (Va.) 899, C is indicted for feloniously and maliciously cutting, striking, wounding, etc., H, with intent to maim, disfigure, disable and kill. The indictment charges that C made an assault upon H, and feloniously and maliciously, etc. The jury find "the prisoner not guilty of the malicious cutting and wounding as charged in the indictment; but guilty of an assault and battery as as charged in the indictment, and assess his fine at $500." Held, Ist. This is an acquittal of the prisoner of the felony charged, whether of the "malicious" or "unlawful" cutting, etc., with intent to maim, etc.; and it is a conviction for the misdemeanor of assault and battery. MONCURE, J., observes in this connection: "The offence of assault and battery, which is a mere misdemeanor is substantially charged in the indictment in this case, the acts which constitute it being part of the felony therein charged. If the accused had been convicted of the felony, then the misdemeanor would have been merged in the felony. But if the accused was acquitted of the felony, it was competent for the jury to convict him of the misdemeanor, to wit: Of the assault and battery substantially charged in in the indictment." 2nd. Though the indictment only used the word "malicious," the jury might have found the prisoner guilty of the "unlawful" cutting, etc., with intent, etc. 3rd. Though the indictment is for a felony, the assault and battery being charged in it, the prisoner may be acquitted of the felony, and convicted of the misdemeanor; and the jury may assess a pecuniary fine upon him, but not imprisonment. 4th. Upon such a conviction the court may sentence the prisoner to be imprisoned in the county jail, in addition to the pecuniary fine. In State v. Thompson, 30 Mo. 470, 14 C. of L.-63 993 an indictment charging that the defendant on, etc., at, etc., did then and there feloniously assault one J. D. with a certain handle of a hoe, a deadly weapon, by feloniously assaulting and striking him, the said J. D., then and there feloniously to maim, wound and disfigure, contrary, etc., was held to be a good indictment under R. C. 1855, p. 567, § 38, entitled an act concerning crimes and punishments. SCOTT, J., in the opinion of the court, observes: "The thirty-eighth section of the act concerning crimes and punishments, punishes all assaults made with intent to kill, or to commit any robbery, rape, burglary, manslaughter, or other felony. This indictment charges the defendant with having made a felonious assault with an intent feloniously to maïm, wound and disfigure. A felonious maiming is a felony. The defendant is then charged with an assault with intent to commit a felony, and the indictment is within the words of the law. Whether the offence laid in the indictment is a common assault and battery not indictable, would be a question arising on the trial on the evidence. It is sufficient that the charge is made a felony; whether it is or not will be determined by the evidence. The weapon used in making the assault is alleged to be a dangerous one. See also State v. Brown, 60 Mo. 141; Molette v. State, 49 Ala. 18; Com. v. Reed, 3 Am. Law 140; Scott v. Com., 6 S. & R. (Pa.) 224. In Molette v. State, 49 Ala. 18, PETERS, J., observes: "The offence of mayhem is a felony under the Revised Code, § 3541, and the biting off an ear, if done maliciously, intentionally and unlawfully, is mayhem." J. In Com. v. Reed, 3 Am. Law 140, BUFFINGTON, J., observes: "Whether mayhem be felony or misdemeanor, it is properly charged as being done feloniously." See also Scott v. Com., 6 S. & R. (Pa.) 224. affray will not constitute a defence; nor will the consent of a party, to the injury being inflicted upon himself, excuse him from 1. State v. Simmons, 3 Ala. 497; State v. Gerkin, 1 Ired. (N. Car.) 121; State v. Danforth, 3 Conn. 112; State v. Evans, 1 Hayw. (N. Car.) 325; State v. Crawford, 2 Dev. (N. Car. 425. In State v. Evans, i Hayw. (N. Car.) 325, the court held that the act once proved to be committed the law will presume it done intentionally. Biting Off Finger.-The law requiring the act of biting off the finger to be done on purpose, unlawfully and with intent to maim, when the act itself is proved, the law will presume it was done on purpose and with intent to maim, as it actually was a maim, till the evidence showeth the contrary; such as that it was done by accident, or done in such a manner as was not likely to be attended with that effect; or that it was done for the necessary self defence of the party against some great bodily harm attempted by the person maimed, and that there was no other means of preventing the mischief, or other circumstances of the like kind. If a sudden rencounter shall be deemed sufficient to excuse the party maiming from the penalties of this branch of the act, it will be of very little avail, for then in every sudden affray, the one party may bite off the nose, fingers, etc., of the other and excuse himself by saying it was done in the heat of passion upon a sudden affray. See also State v. Skidmore, 87 N. Car. 509; Terrell v. State, 86 Tenn. 523; Davis v. State, 22 Tex. App. 45; Bowers v. State, 24 Tex. App. 542; State v. Hair, 37 Minn. 351; Eskridge v. State, 25 Ala. 30. In State v. Gerkin, 1 Ired. (N. Car.) 121, in an indictment under the fortyeighth section of the thirty-fourth chapter of the Revised Statutes, an intent to disfigure is prima facie to be inferred from an act which does in fact disfigure, unless that presumption be repelled by evidence on the part of the accused of a different intent, or at least of the absence of the intent mentioned in the statute. It is not necessary under this statute to prove malice aforethought or a preconceived intention to commit the maim. Not Necessary that the Whole Ear Should be Bitten Off-To constitute a maim, under this statute by biting off an ear, it is not necessary that the whole ear should be bitten off; it is sufficient if a part only is taken off, provided it is enough to alter and impair the natural personal appearance and to ordinary observation to render the person less comely. See also in this last connection, State v. Abram, 10 Ala. 928. In State v. Skidmore, 87 N. Car. 509, upon a trial for an indictment for maim, it appeared that while the parties were engaged in fighting the defendant bit off a part of one of prosecutor's ears and the judge charged it was incumbent on defendant to satisfy the jury that the act was done in self defence. It was also held that it was not error to refuse to charge that if the severance of the ear while in defendant's teeth resulted from the violent manner in which the parties were separated, it would not be a maim done "on purpose with intent to disfigure," for this the law presumes when the act is proved. See also State v. Norton, 82 N. Car. 628; Wright v. State, 9 Yerg. (Tenn.) 342; Worley v. State, 11 Humph. (Tenn.) 172; Young v. State, II Humph. (Tenn.) 200. In State v. Hair, 37 Minn. 351, in a prosecution for maiming under section 177 of the Penal Code, the court held that the injury must be wilfully inflicted "with the intent to injure, disfigure or disable;" but the "intent" is to be presumed from the act of maiming, unless the contrary appears. The "intent" referred to in the statute may be defined to be the purpose at the time to do, without lawful authority or necessity, that which the statute forbids; and the words "intent to injure” refer to injuries of the same class specified in the statute, or such as might reasonably be expected to be dangerous, or result in serious bodily harm. In State v. Jones, 70 Iowa 505, on an indictment for disfiguring the person of another in the midst of an altercation, held that the court properly instructed the jury that a specific intent on the part of the defendant to disfigure was an essential element of the crime, but that such intent might be inferred or presumed if he did the act deliberately and the disfigurement was reasonably to be apprehended as the natural and probable consequence of the act, but that they ought to consider all the circumstances of the transaction in determining whether the specific intent existed in his mind at the time, or punishment. He will, on the contrary, be guilty of the crime in the same degree and manner, with the party who inflicted the injury.1 While the "intent" under the New York statute must amount to an antecedent and secret purpose to commit the act and not a doing of the act in a sudden and unlooked for affray with no evidence of premeditation,2 yet in other States it has been held that it is not necessary that the specific intent should exist previous to the conflict if the act is committed maliciously and on purpose, in pursuance of a design formed during the conflict.3 VIII. WILFUL AND MALICIOUS.-To constitute the offence of mayhem, the act must be done both wilfully and maliciously. A wilful act is one committed with an evil intent, with legal malice, without reasonable ground for believing the act to be lawful, and without legal justification. A malicious act is one committed in a state of mind which shows a heart regardless of social duty, and fatally bent on mischief; a wrongful act, intentionally done without legal justification or excuse.4 IX. INDICTMENT.--While at common law an indictment for mayhem must not only charge the facts which constitute the injury but must also charge, as a conclusion from the facts averred, that the party was "maimed," it is not necessary in an indictment under a statute which describes a particular act, or acts, as a crime of a particular grade, after charging the acts, to state the legal conclusion that they amount to the crime of the grade declared, for such is the conclusion of the law on the facts alleged.5 In some whether he did the act deliberately. In such case, the court properly refused to instruct the jury that, as an intent to disfigure was an essential element of the crime, they would not be warranted in convicting unless there was other evidence of such intent than the mere presumption which might arise from the doing of the act in the manner in which it was done. See also Ridenour v. State, 38 Ohio St. 272. 1. 1 East P. C. 396; 1 Hawk. P. C. 108; Champer v. State, 14 Ohio St. 437; State v. Beck, 1 Hill (S. Car.) 363; Barholt v. Wright, 45 Ohio St. 177; Shay . Thompson, 39 Wis. 540; Galbraith v. Fleming, 60 Mich. 403. 2. Foster v. People, 50 N. Y. 598; Godfrey v. People, 63 N. Y. 207; Burke v. People, 4 Hun (N. Y.) 481; Tully v. People, 67 N. Y. 15. See also Molette v. State, 49 Ala. 18; Slattery v. State, 41 Tex. 619. 3. State v. Simmons, 3 Ala. 497; State v. Hair, 37 Minn. 351; State v. Jones, 70 Iowa 505: Ridenour v. State, 38 Ohio St. 272; State v. Gerkin, 1 Ired. (N. Car.) 121; State v. Evans, 1 Hayw. (N. Car.) 325; State v. Crawford, 2 Dev. (N. Car.) 425; State v. Skidmore, 87 N. Car. 509; State v. Bloedow, 45 Wis. 279; Hayden v. State, 4 Blackf. (Ind.) 546; Baker v. State, 4 Ark. 56; United States v. Gunter, 5 Dak. 234. Where the court held "that under Rev. Stat. U. S., section 5348, prescribing the punishment of one who shall maliciously put out the eye, etc., of another, with intent to maim and disfigure, a premeditated intent and design on the part of defendant need not be shown." See generally CRIMINAL LAW, Vol. 4, p. 681. 4. Bowers v. State, 24 Tex. App. 542; Wright v. State, 9 Yerg. (Tenn.) 342; State v. Hair, 37 Minn. 351; State v. Gerkin, 1 Ired. (N. Car.) 121; Molette v. State, 49 Ala. 18: Worley v. State, II Humph. (Tenn.) 172. 5. Guest v. State, 19 Ark. 405; Anderson v. State, 5 Ark. 444; Absence v. State, 4 Porter (Ala.) 397; Chick v. State, 7 Humph. (Tenn.) 161; Benham States the indictment need not charge that the act was done feloniously, but must charge that the offence was committed on purpose as well as unlawfully.2 In general it may be said, that in an indictment for mayhem, whether or not it be absolutely necessary to employ the exact words of the statute, it is well settled, that the offence as to facts and circumstances must be brought within the provisions and limitations of the statute creating it either by the use of the terms employed in the act, or others clearly and necessarily equivalent.3 X. CONVICTION OF LESSER OFFENCE.-On an indictment for mayhem, there might be a conviction of any lesser offence (e. g., assault and battery) which the indictment includes.4 XI. JOINDER OF OFFENCES.--Offences of the same character, and subject to the same punishment, though differing in degree may be united in the same indictment and the prisoner tried on both at the same time and convicted of one and not of the other.5 v. State, 1 Iowa 542; Riflemaker v. State, 25 Ohio St. 395; Ridenour v. State, 38 Ohio St. 272; Kitchens v. State, 80 Ga. S10. In Angel v. Com., Com., 2 Va. Cas. 231, although the statute against unlawful shooting, etc., affixes a penalty when the act is done with intent to maim, disfigure, disable or kill (in the disjunctive), yet the indictment should charge the intents conjunctively. Although all of the intents be laid, yet proof of either supports the indictment. In Respublica v. Reiker, 3 Yeates (Pa.) 282, the court held an indictment on the first clause of the sixth section of the act of April 22nd, 1794, against maiming, leaving out the words "lying in wait," or on the second clause leaving out the word "voluntary," is defective. 1. State v. Absence, 4 Port. (Ala.) 397. 2. State v. Ormond, 1 Dev. & Batt. (N. Car.) 119; State v. Green, 7 Ired. (N. Car.) L. 39. 3. Com. v. Clark, 6 Grat. (Va.) 675; Com, v. Israel, 4 Leigh (Va.) 675; Roberts v. Com., 10 Leigh (Va.) 686; Com. v. Lester, 2 Va. Cas. 198; Peas v. Com., 2 Gratt. (Va.) 629; Com. v. Hamlett, 3 Gratt. (Va.) 82; Howell v. Com., 5 Gratt. (Va.) 664;,United States v. Gunter, 5 Dak. 234. Miscellaneous.-In State v. Green, 7 Ired. (N. Car.) L. 39, the court held that an indictment under the North Carolina statute (R. S., ch. 34, § 48) for maiming by biting off an ear need not state whether it was the right or left ear. against mayhem charged a shooting with intent to maim, disfigure, disable and kill; while the statute used the disjunctive or, instead of the conjunctive as in the indictment. Held, that the indictment was good. In State v. Ailey, 3 Heisk. (Tenn.) 8, the court held that an indictment for mayhem which charges that the defendant slit, cut off and bit off the ear of a person, is not bad for duplicity. In State v. Mairs, Coxe (N. J.) 453, it was held that an allegation that the nose of the prosecutor was bitten off is within a statute, so as to imply a cutting off of the nose. In State v. Vowels, 4 Oreg. 324, it was held proper to designate as mayhem the maliciously and feloniously tearing off of an ear. 4. Com. v. Blaney, 133 Mass. 571; State v. Bloedow, 45 Wis. 279. See also State v. White, 45 Iowa 325; State v. Connor, 59 Iowa 357; State v. Waters, 39 Me. 54; State v. Phinney, 42 Me. 384; State v. Butman, 42 N. H. 490; State v. Reed, 40 Vt. 603; Beckwith v. People, 26 Ill. 500; Wall v. State, 23 Ind. 150; State v. Thompson, 30 Mo. 470; Canada v. Com., 22 Gratt. (Va.) 899; Cameron v. State. 13 Ark. 712; Guest v. State, 19 Ark. 405; Strawn v. State, 14 Ark. 549; Benham v. State, I Iowa 542; State v. Fisher, 103 Ind. 530; Mills v. State, 52 Ind. 187; Richie v. State, 58 Ind. 355; Powers v. State, 87 Ind. 144, 145; Behymer v. State, 95 Ind. 140; Barnett v. State, 100 Ind. 171; Hunter v. Com., 79 Pa. St. 503. In Angel v. Com., 2 Va. Cas. 231, an 5. Baker v. State, 4 Ark. 56; People indictment under the Virginia statute V. Gates, 13 Wend. (N. Y.) 312; Peo XII. RESPONSIBILITY OF CONSPIRATOR FOR THE ACTS OF HIS CO-CONSPIRATORS.--Upon this subject in connection with the crime of mayhem the rule as deduced from the authorities seems to be that each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of the common design, as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. In other words, the act must be the ordinary and probable effect of the wrongful acts specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of, or foreign to the common design.1 MEANDER (See also METES AND BOUNDS). Meander means to follow a winding or flexuous course; and where in a deed one of the boundaries of the land conveyed is designated thus, viz.: "thence with the meander of the river," etc., it must mean a meandered line-a line which follows the sinuosities of the river, or, in other words, that the river is the boundary of the land claim between the points indicated.2 ple v. Rynders, 12 Wend. (N. Y.) 425, 430; State v. Ailey, 3 Heisk. (Tenn.) 8; Whiteside v. State, 4 Coldw. (Tenn.) 175, 182; State v. Harris, 11 Iowa 414; McBride v. State, 2 Eng. (Ark.) 374; Benham v. State, 1 Clarke (Iowa) 542. 1. Bowers v. State, 24 Tex. App. 542; Lamb v. People, 96 Ill. 73; Ruloff v. People, 45 N. Y. 213; Thompson v. 997 State, 25 Ala. 41; Frank v. State, 27 Ala. 37; Williams v. State, 81 Ala. 1; 9 Crim. Law Mag. 480; Kirby v. Stat. 23 Tex. App. 13; Spies v. People, 122 Ill. ; State v. Absence, 4 Port. (Ala.) 397. 2. Turner v. Parker, 14 Oreg. 340; Schurmeier v. Railroad Co., 10 Minn. 100. |