State v. Briley , 8 Port. 472 ( 1839 )

GOLDTHWAÍTE, J.

— The only point reserved for the determination of this court, is, whether the indictment is sufficient to warrant the conviction; the jury having, by their verdict, found the defendant guilty of mayhem.

The second and third counts of the indictment, may be entirely discarded from consideration, as it is certain, neither charge that offence — the former being for an assault, and disabling the arm of the individual injured, and the latter for an assault only.

To ascertain if the first count is sufficient, it is proper to notice thev terms of the statute under which it seems to' have been framed. The act of eighteen hundred and seven (Aik. Dig. 102) enacts, “ if any person or persons, on purpose and of malice aforethought, shall unlawfully cut or bite off the ear or ears: or cut out or disable the tongue: put out an eye, while fighting or otherwise: slit the nose or lip : cut or bite off the nose or lip : or cut off or disable any limb or member of any person whatsoever ; such person shall be deemed guilty of mayhem.”

It is evident, that wherever the statute speaks of disabling a limb or member, a permanent injury is contemplated, as such was the common law notion of the extent of the injury necessary to constitute a mayhem. A temporary disabling of a finger, an arm, or an eye, would not be sufficient to constitute the statutory offence. But it would at all times be exceedingly difficult to frame an indictment, with a view to a specific description of the exact injury sustained. This precision of description is as unnecessary, as it is dangerous, in indictments bn statutes, and all that the law requires, is a description of. the offence, in the words of the statute creating it—(Arch; Crim. Law, 52.) The only exception that is known to exist to this general rule, is where a statute makes use of a technical term known to the. law; as burglary, robbery, &c.—(State vs. Absence, 4 Porter, 397.)

Having regard to this general rule, it would seem only to be necessary, that the indictment should charge an offender against this statute, with doing on purpose arid of malice aforethought, unlawfully, the act complained of. This, with the proper allegations of time and place, with a formal commencement and conclusion, would constitute a sufficient indictment. If we examine the first count, we ascertain that all these allegations are found there, connected with other matters, which, if superfluous, are neither repugnant nor inconsistent with the charge. The statement of-the assault and battery with the stick, and breaking the arm, are, indeed, but a history of the violence, which could have been.omitted. The super adding the intention to maim, is, when examined, nothing more than a reiteration of the idea previously conveyed to the mind, by-the words ‘on purpose, and of malice aforethought:’ the indictment is, therefore, sufficient to warrant the conviction.

If we were permitted’ to examine the point, as to mis-joinder of the counts, it would avail the defendant nothing, as it is clear, that after conviction on one count alone of the indictment, a motion in arrest of judgment could not prevail.

Let it be certified, that there is no error in the judgment rendered.