#### THE STATE *v.*WILLIAM ORMOND.

An indictment for biting off the ear under the second section of the act of 1794 *(JRev.*339), must state the offence to be done *on purpose,*as well as unlawfully.

The defendant was tried, and a general verdict of guilty found against him, at Green, on the last Circuit, upon the following indictment, viz.:

“ The jurors for the state, upon their oaths present, that William Ormond, late of the county of Green, on the first day of January, one thousand eight hundred and thirty-four, with force and arms, at and in the county aforesaid, unlawfully did bite off the ear of one Charles Joiner, at and in the county aforesaid, with intent him, the said Charles Joiner, to maim and disfigure, contrary to the act of the General Assembly in such case made and provided, to his great damage, and to the evil example of all others in like cases offending, and against the peace and dignity of the state; and the jurors aforesaid, upon their oaths aforesaid, do further present, that William Ormond after-wards, to wit, on the day and year aforesaid, with force and arms an assault did make upon one Charles Joiner, in the peace of God and the state then and there being, and him the said Charles Joiner then and there did beat, wound and ill-treat, and other wrongs then and there did to the said Charles Joiner, to his great damage, and against the peace and dignity of the state.”

A motion"was made to arrest the judgment upon the first count, which was sustained by his honour, Judge Norwood, who thereupon pronounced judgment upon the second count, that the defendant pay a fine of five dollars, *120be imprisoned sixty days, and stand commmitted till the fine and costs be paid — Whereupon the defendant appealed.

*Mordecai,*for the defendant.

*The Attorney General,*for the state.

Daniel, Judge.

— The first count in this indictment, is predicated on the second section of the act of 1791, *{Rev. ch.*339,) which declares, “ that if any person or persons, shall, *on purpose,*unlawfully bite or cut off an ear,” &c. *“*with intent to disfigure such person,” &c., shall, on conviction, be imprisoned six months, and fined at the discretion of the Court. The count does not set forth that the defendant did *on purpose*unlawfully bite off the ear of the prosecutor. The words, *on purpose,*are in part descriptive of the offence created by the statute. The Court cannot pronounce the judgment demanded by the statute, unless the offence is completely described. *Lembro*and *Hamper,*Cro. Eliz. 147, were indicted for perjury upon the 5 Eliz. c. 9. Exception was taken to the indictment in that it was *¡falso et corruptive deposuere,*but not *volun-tarle;*and although at the end of the indictment it is, *et sic volunlarium commissere perjurium.,*yet this doth not help it; and for this cause the defendants were discharged. When an indictment is formed upon the statute of Charles 2d, it must pursue the words of the statute, and allege the offence to be *on purpose,*&c., and that the act was done with the intent to maim and disfigure. 1 East’s Crown L. 402; *Carrol’s case,*1 Leach, 66. So under the statute 9 George 1st, c. 22 (commonly called the Black Act), w'hich enacts, that “ if any person or persons shall wilfully and maliciously shoot any person in any dwelling-house or other place,” &c. the indictment must pursue the words of the act, and charge the offence to be done “ wilfully and maliciously,” as well as feloniously. In *Davies’ case,*it w'as laid to be done “ unlawfully, maliciously and feloniously,” omitting *wilfully,*and held ill by a majority of the Judges, who considered the words “ wil-fully and maliciously” as in part descriptive of the offence. 2 Leach, 556; 1 East’s C. L. 414, 415; *State*v. *Martin,**1213 Dev. 329. In the case of the *State*v. *Evans,*1 Hay. 281, the indictment charged that the said Evans *on purpose,*unlawfully did bite off the forefinger of the right hand of the prosecutor, with intent, &c. I admit that it is difficult to perceive, how it is possible for one person unlawfully to bite off another’s ear, and at the same time not purpose to do it. But as there are several other offences besides this, mentioned in the same section, either of which could very possibly be unlawfully committed, without *purposing*the act, we think the rule and decisions should be uniform in each and every case that can arise under the section; therefore we are of opinion, that the Court did right in arresting the judgment on the first count.

We have examined the second count, and are unable to discover that it is defective. Nor do we discover upon the whole record any defect for which the second count should be arrested. The first count’s being defective is no reason for arresting the judgment upon the second count. 1 Chitty Crim. Law, 249; 1 Bos. & Pul. 187; 1 Salk. 384.

Per Curiam. Judgment affirmed.