The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-10-25

OPINION OF THE COURT BY BIcKERToS, j.
This case came on for trial at the
May Term, 1894, of the Circuit Court
for the First Circuit. and resulted In
q unanimous verdict Of "Guilty as
charged" with a recommendation to
mercy and the defendant was SEN
fenced to imprisonment at hard
labor for six months and hne CT
five dollars. A motion for a new
trial was made and after argument
was overruled.
The matter now comes here on a
duly allowed bill of exceptions, COW
ering several grounds of exception,
but the only points presented TO us
in arguments and briefs for our con-
sideration are, first, the form of the
charging part of the indictment; and
second, the construction to be put
upon the statute under which the
defendant is charged. The charging
part of the indictment is as follows:
"With force and arms in and upon
one Bert Peterson feloniously,
maliciously and forcibly, and without
authority or justification by law and
with intent then and there the said
Bert Peterson to MAIN, disfgure and
mutilate, did make an assault and
did feloniously and malIclously bite
and tear off the right ear of the said
Bert Peterson, contrary to, &c, &C."
The statute under which the charge
il laid, Chap. TX, SEQ. 3, Penal Code,
is as follows: "Whoever with mali
cious intent to MAIN, or disfgure or
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 us
that these two points must be taken
and considered together. 1t is con-
tended by defendant that the statute
provides for ofensss, one of a 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 offense, 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 In
the earlier part of the section.
There is only one punishment pro-
vided, not two or more as In offenses
where there are degrees, as In lar
ceny, 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
q 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 q 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, 1t Is considered that the evidence
would have supported the convict
ion," but contends that the evidence
only proving a mutilation of a
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. 81 Plead, vol. p. Is Is
from North Carolina. There the
charge was that the defendant "un-
lawfully, and on purpose, did bite off
the left ear of one James Watson
with intent to disfgure the
said James Watson, &c, &c" 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
w stsons' ear, about an inch along
he rim of the ear and about a
quarter of an inch deep. The de-
'endant's counsel insisted that the
biting of part of the ear did not
come within the statute. The Jury
we're instructed that it was not neces.
AIRY that the whole of the ear should
- taken off, 1t being sufficient if a
)art was taken of, and was so large
g to make it perceptible to anyone
hat part of the ear was gone. On
appeal on this point the lower court
gss sustained.
In the case of Thomas Slattery V.
The State XLI, Texas Reports, p.
10, it was held that ''the ofense of
naiming is complete, though the
nember Of which the party was de-
rived was put back to its proper
lace and afterwards grew there" &
q the case at bar the portion of the
ar that was torn off was sewn on {
nd part of it healed or grew there. ,
In the case of Ryerson V. Grover, {
{ al, n. j. p. 523, it was held that {