Green v. State

• Citation: 44 So. 194,151 Ala. 14
• Parties: GREEN v. STATE.
• Decision Date: 06 June 1907
• Court: Supreme Court of Alabama

44 So. 194

151 Ala. 14

GREEN v. STATE.

Supreme Court of Alabama

June 6, 1907

Appeal from Cleburne County Court; T. A. Johnson, Judge.

Charlie Green was convicted of mayhem, and appeals. Reversed and remanded.

The indictment in this case charged that Charlie Green unlawfully, maliciously, and intentionally did cut off, bite or strike off an ear of W. M. McCalmon. The evidence tended to show that defendant and McCalmon were engaged in a difficulty which was brought about as the result of a conversation between them, and in the absence of any one at the time; that defendant knocked McCalmon down, and was on him, beating him in the face and on the head, when certain people ran up and took him off; but, as defendant was getting off, he bit off a small portion of McCalmon's ear. There were a great many exceptions to testimony, but such as are material are sufficiently set out in the opinion. The following charges were refused to the defendant: "(2) If the jury find from the evidence that defendant and McCalmon were engaged in mortal strife, and that said McCalmon was armed with a deadly weapon, and that the defendant was unarmed, and while so engaged in said strife the defendant bit off only a small portion of said McCalmon's ear, they must acquit the defendant." "(13) If the jury believe from the evidence that the defendant cut, bit, struck off, or mutilated the ear of McCalmon while fighting with said McCalmon in self-defense, and if they believe further from the evidence that the defendant was free from fault in bringing on said difficulty, they must find him not guilty." "(31) I charge you, gentlemen of the jury that before you can convict the defendant you must be satisfied from the evidence beyond a reasonable doubt that the act was done unlawfully, intentionally, and with malice aforethought, and unless you are so satisfied you must acquit the defendant." The defendant was convicted, and sentenced to five years in the penitentiary.

Baker &amp Stevens, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN J.

Mayhem as defined, in the presently pertinent aspect, by section 5095 of the Code, is committed when any person "unlawfully, maliciously and intentionally cuts, bites or strikes off an ear" of another person. This statute has been partially construed in Molette's Case, 49 Ala. 18. The essential ingredients of the offense, the necessary disfigurement of the person maimed being given, are that the act was done without authority of law and with evil intent and by design. In this instance the disfigurement, necessary to justify conviction, must have been such as would afford to the casual observer of the person injured, and not such as requires a close or unusual inspection to detect. In other words, the injury to the ear must be such as disfigures to ordinary observation, as distinguished from a wounding which simply mars the member. Abram's Case, 10 Ala. 928. Whether the injury is of the necessary character must ordinarily be determined by the...