Carson City daily appeal. [volume] (Carson City, Nev.) 1907-1930, 1916-12-29

Gu dS wei tdNSh, At III wv w.
! sence of demurrer. The crime OF
mayhem is defined in section Isl,
supra, and it is sufficient that the Of
the statute or its equivalent. While
it is essential, under the provisions
Of section l53, supra, hat the proof
show that the injury or designation
is permanent, in order to warrant a
conviction for mayhem, the definition
of the crime prescribed i'll section Isl
makes no reference to the perma-
nency of the injury or distiguaration
Possibly this is because there is a
presumption that a condition once
, shown to exist will continue unless
: the contrary is made to appear. We
fare clearly of the opinion that II
there is any merit in the contention
that the information should specific
ally allege the injury or distiguration
the objection is Of a nature which
should be taken advantage of by de-
Turrer.
1t is conceded by counsel for ap-
pellant that if the information had
charged appellant with unlawfully
and maliciously Sitting the ear OF
the said Cavaney, the information
would have charged the crime per Sc,
but because it is only charged hat
the appellant bit off a portion of the
right ear, such allegation is not the
equivalent of charging a sitting OF
the ear. While the word slit" may
have a broader definition than the
word bite" (PeSple vs.: Demasters.
| los Cal, 66o), the information in
t.,,act;N,, have ~1,,~rao fho+ +J,a ,ona1-
liant did bite off with his teeth a por-
ton of the right ear * * * and
thereby disabled and di5figured said
ear The information, therefore,
charges a completed act, which COM
Of the ear, for, by the provisions OF
section Isl, it is immaterial by what
means the injury or Disagreement is
effected.
There is no conflict in the testi-
mony i'll so far as it showed that the
| defendant bit off a portion Of the
right ear OF the said Cavaney dur
ing a personal encounter between
the K'o following a dispute over a
card game. There is no conflict IN
! tho evidence relative to the extent
| OF the injury inflicted. The injured
! ear was submitted to the personal in
1 spection of the jury. DR.. Wilson, a
) witness for the State. who attended
Cavaney immediately after the in
about a fourth of the cartilage OF
| the ear was off; all OF what you call
the top of the external ear is off and
down to about the middle Of the outer
edge"
The evidence is conclusive that, by
the act OF appellant in biting off the
I portion of the ear described, a per-
%1nanent injury or designation of the
member was effected. The CONTEXT
J ton that the evidence is insufficient
! to SUPPORT the verdict and judgment
is, therefore. without merit.
, 1t is contended that the court err
ed in refusing defendants requested
instruction which in effect advised
| the jury that in accordance with the
provisions of section l5S, supra, the
jury could find the defendant guilty
of assault. We think the court did
not commit error in the refusing OF
this instruction. The evidence, with
Out conflict aud without question,
showed that the injury inflicted re-
suited in a permanent designation
OF appearance. There vas no room
for any question as to whether a
lesser offense might have been COM
mltted. In such cases it is not er-
ror to refuse an instruction that a
verdict for a lesser offense may be
returned. Estate vs.. Johnny, 20
New. 2O3, 223.)
Appellant assigns error in the Civ
ing Of instruction No. s, given by the
court Of its own motion. The por-
ton Of the instruction to which eS-
ception is taken reads: &C..
and then if you should further
! find from the evidence herein beyond.
a reasonable doubt that such injury
to the said ear of said J. A, Cavaney
will result in a permanent d%ishgura-
ment of the appearance Of said ear,
then you should convict the defend
ant of mayhem" p
1t is commended that the law is
correctly stated in the case of Green
VS.. State. Isl, Ala. IA, a. S. 1914, IFS
Am. St. II, as follows:
In this instance the Disagreement,
necessary to justify conviction. must
have been such as would afford to the
casual observer Of the person injur-
ed. and not such as requires a close
or unusual inspection to detect. In
other words, the injury to the ear
must be such as dishgures to ordi-
nary observation, as distinguished
from a wounding which simply mars
the member" =
We may concede the law to be cor
rectly stated in the Alabama case.
supra.
The objection to instruction No.
8 goes rather to the question Of the
extent of the injury necessary to cons
stitute a permanent dishguration. The
instruction states the law correctly.
1t may be conceded that it could very
properly have gone farther and
pointed out specifically what was
necessary to constitute a permanent
designation. There was, however,
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