The Hawaiian gazette., 1894-10-26

The statute under which the charge
is laid, Chap. TX, Sec. 8, Penal Code
is as follows: whoever with mali.
cious intent to MAIN, or disfgure OF
mutilate, shall cut out or MAIN the
tongue. put out or destroy an eye,
cut or tear off an ear, cut or slit or
mutilate the nose or lip, or destroy
or disable any limb, member or
bodily organ of another shall be
punished, &c, &C." 1t seems to MS
that these two points must be taken
and considered together. It is con-
tended by defendant that the statute
provides for offeuses, one of great
er and The other of less degree. We
are not of that opinion; it is very
plain and clear and can only mean
just what it says. The offense of
destroying or disabling any member
or bodily organ as provided for in
the last part OF the section, this
being by counsel, considered the
lesser ofense, was evidently not
SO considered by the Leg
islature, but was added in
general terms to cover all other acts
of main not specially enumerated Ia
the earlier part of the section.
There is only one punishment pro-
Vldedi not two or more as in offenses
where there are degrees, as in lar
ceDy, manslaughter, &C., &c, where
the punishment is provided for each
degree. In this statute the punish
ment is left to the discretion of the
Court, a fine of from one cent to
$1,000. and any term not to exceed
ten years; it might be even one hour;
it is left to the Court to impose such
punishment as the circumstances
of the case and the extent of the in
jury inflicted demand. This is as it
should be, for in cases charged
under this law, the injuries might be
of very serious or of very slight
nature and yet be within the mean
ing of the statute.
Defendants counsel in his brief
says: 'If our statute only provided
for the tearing or cutting off of an
ear, it is considered that the evidence
would have supported the convict
ion." but contends that the evidence
only proving a mutilation of
member or organ, the proof was not
sufficient to sustain the verdict,
which is claimed to be contrary to
the law and evidence.
The case of State v. Girkin, l
Iredell Rep. 121, reported in Arch.
Grim. Pract. & Plead vol:-2 o. Is Is
from North Carolina. There the
charge was that the defendant sun.
lawfully, and on purpose, did bite off
the left ear of one James Watson
& + with intent to disfgure the
said James Watson, &c, Sc" The
evidence showed that defendant and
Watson had engaged in a fight and
after Watson had bitten defendants
finger, the latter bit off a piece of
Watsons' ear, about an inch along
the rim of the ear and about
quarter of an inch deep. The de-
fendant's counsel insisted that the
biting off part of the ear did not
come within the statute. The Jury
were instructed that it was not neces
sary that the whole of the ear should
be taken off, it being sufficient if a
part was taken off, and was so large
as to make it perceptible to anyone
that a part of the ear was gone. On
appeal on this point the lower court
was sustained.
In the case of Thomas Slattery V.
The State XII, Texas Reports, p.
319, it was held that "the offense of
manning is complete, though the
member of which the party was de-
prived was put back to its proper
place and afterwards grew there"
In the case at bar the portion of the
ear that was torn off was sewn on
and part of it healed or grew there.
In the case of Ryerson v. Grover,
ct al, l n. j. p. 523, it was held that
'if the nose was bitten off, it is a |
cutting off within the meaning of the
statute"
"To constitute biting off an ear
the whole ear need not be taken
away, provided enough be removed |
to impair the personal appearance
and render the individual less
comely" Ia A. & E. Encycl. Law,
p. 994, note.
The question was properly left to
the jury; it was for them to say
whether or not Peterson's personal
appearance was in fact i'm
paired; they were to Judge
from the evidence of DIR.
Cooper and their own observation of
Peterson who was before them as a
witness. The charge of the court
was very clear and plain on this
point The facts in this case were
left entirely to the jury.
In general it may be said, that in
an indictment for main, whether or
not it be absolutely necessary to
employ the exact words of the
statute, it is we'll settled, that the
ofense as to facts and circumstances
must be brought within the provis-
ions and limitations of the statute
creating it, either by use of the
terms employed in the Act, or
others clearly and necessarily
IA A. & E. Encycl. Law, p. 996.
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