State v. Bass

• Decision Date: 16 June 1961
• Docket Number: No. 722,722
• Citation: 255 N.C. 42,87 A.L.R.2d 259,120 S.E.2d 580
• Parties: , 86 A.L.R.2d 259 STATE, v. Irvin K. BASS.
• Court: North Carolina Supreme Court

Page 580

120 S.E.2d 580

255 N.C. 42, 86 A.L.R.2d 259

STATE, v. Irvin K. BASS.

No. 722.

Supreme Court of North Carolina.

June 16, 1961.

T. W. Bruton, Atty. Gen., and H. Horton Rountree, Asst. Atty. Gen., for the State.

Bethea & Robinson, Reidsville, for defendant.

MOORE, Justice.

Defendant assigns as error the refusal of the court to grant his motion for nonsuit made at the close of the evidence. Defendant insists that there are at least three phases and circumstances of the case which make nonsuit mandatory, and that either of these is sufficient for dismissal.

(1) It is contended that Rogers consented to the maiming and that because of this consent the act of James Bryson in cutting off Rogers' fingers is not a violation of G.S. § 14-29 upon which the indictment is based. Defendant argues that at common law mayhem, in cutting off fingers or other members of the body, when self-inflicted or inflicted upon one's consenting, was a punishable criminal offense only when done with malice aforethought, that G.S. § 14-29 applies to such mayhems only when done without malice aforethought and when inflicted by one person upon another, that the statute alters, abrogates and replaces the common law and therefore there can be no crime of 'maiming without malice aforethought where the person alleged to have been maimed has requested that the act of maiming be committed upon him.'

This contention requires that we trace briefly the development and application of the law relating to mayhem from the early days in England and from the colonial period to the present day in North Carolina.

To the early writers on English law the 'common law' meant those rules which by custom, usage and court decision, and not by act of Parliament, had come to be recognized as the law of the land. At common law, as thus understood, 'mayhem, mayhemium, was in part considered * * * as a civil injury; but it is also looked upon in a criminal light by the law, being an atrocious breach of the king's peace, and an offense tending to deprive him of the aid and assistance of his subjects. For mayhem is properly defined to be, as we may remember the violently depriving another of the use of such of his members as may render him less able in fighting, either to defend himself, or to annoy his adversary. And therefore the cutting off, or disabling, or weakening a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts the loss of which in all animals abates his courage, are held to be mayhems. But the cutting off his ear, or nose, or the like, are not held to be mayhems at common law; because they do not weaken but only disfigure him.' Chitty's Blackstone, Book IV, C. XV, pp. 205-206.

'Note, the life and members of every subject ate under the safeguard and protection of the king * * * to the end that they may serve the king and their countrie, when occasion shall be offered. Nay, the lord of the villiene, for the cause aforesaid, cannot mayheme the villiene, but the king shall punish him for mayheming of his subject (for that hereby he hath disabled him to do the king service) by fine, ransome, and imprisonment, until the fine and ransome be paid.' 1 Coke Upon Littleton (1st Amer. from 19th London Ed., 1853), s. 194.

'* * * (T)he common law elements of Mayhem are (1) depriving; (2) anyone; (3) maliciously; (4) of a corporeal member useful for fighting.' Burdick: Law of Crime (1946), Vol. 2, s. 401, p. 71.

'* * * (I)n order to found an indictment or appeal of mayhem the act must be done maliciously; though it matters not how sudden the occasion.' 1 East, P. C., Ch. VII, s. 1, p. 393 (1803).

'* * * (A)t common law * * * the injury must be done wilfully and maliciously; but it is not necessary that it shall be premeditated. It may be inflicted in a sudden affray.' Clark and Marshall: Crimes (5th Ed.), s. 219, p. 288.

'Malice, according to the authorities, was an essential element in mayhem at common law.' State v. Wilson, 1924, 188 N.C. 781, 125 S.E. 612, 613.

Blackstone continues comment: 'By the ancient law of England he that maimed any man, whereby he lost any part of his body was sentenced to lose the like part; membrum pro membro * * *. But this went afterwards out of use. * * * So that, by the common law, as it for a long time stood, mayhem was only punishable by find and imprisonment * * *.' Chitty's Blackstone, Book IV, CH. XV, p. 206.

'But subsequent statutes have put the crime and punishment of mayhem more out of doubt. For first, by statute 5 Henry IV, C. 5. to remedy a mischief that then prevailed by beating, wounding, or robbing a man, and then cutting out his tongue, or putting out his eyes, to prevent him from being an evidence again them, this offense is declared to be a felony, if done of malice prepense; that is, as Sir Edward Coke explains it, voluntarily, and of set purpose, though done upon a sudden occasion.' ibid, p. 206.

Thus, after 5 Henry IV (1404), the cutting out of a tongue or putting out of eyes was a felony if done with malice aforethought. Other acts of malicious maiming were aggravated misdemeanors. Except for minor modifications, not of interest here, this was the status of the law of mayhem until 1683.

As thus defined, mayhem was a crime at common law when self-inflicted, and if inflicted by another upon a consenting victim both were guilty of mayhem. It is clear that this was true regardless of whether malice or malice aforethought was involved. A case was tried and decided in 1603 which is remarkably similar to the case at bar. It is universally accepted as precedent and has been repeatedly cited as authoritative. In Lord Coke's commentaries it is reported in these words: '* * * (I)n my circuit in anno 1 Jacobi regis, in the County of Leicester, one Wright, a young strong and lustie * * * rogue, to make himselfe impotent, thereby to have the more colour to begge or to be relieved without putting himselfe to any labour, caused his companion to strike off his left hand; and both of them were indited, fined and ransomed therefore, and that by the opinion of the rest of the justices for the cause aforesaid.' 1 Coke Upon Littleton (1st Amer. from 19th London Ed., 1853), s. 194.

'* * * (A) person who even maims himself, or procures another to maim him, that he may have more colour to beg; or disables himself to prevent being pressed for a soldier; is subject to fine and imprisonment at common law; and so is the party by whom it was effected at the other's desire.' 1 East, P.C., Ch. VII, s. 4, p. 396 (1803). Also see 1 Hale, P.C. Ch. XXXI, p. 412 (New Ed. 1778) in which the Wright case is cited.

'* * * (T)here is self-murder, or suicide, at common law, and, logically, there may be self maiming also. In fact, this principle was recognized in an old English case (Wright's case) where it was held that if one maimed himself, or procured another to maim him, both the injured person and the one by which the act was done were guilty.' Burdick: Law of Crime (1946), Vol. 2, s. 403, p. 74.

'Consent of the person maimed is no defense. If a man procures another to cut off his hand, both are guilty.' Clark and Marshall: Crimes (5th Ed.), s. 218, p. 288.

'According to the common law, a person could not rightfully take his own life. If he did so, he became guilty of murder. The law also prohibited self-maiming. Consequently, the consent of one given to another, either to kill or maim, was ineffective to prevent criminal liability on the part of the latter. Although suicide is no longer a crime in most jurisdictions, the rule still prevails that consent to a killing or maiming does not prevent its being criminal.' Miller on Criminal Law (1934), s. 57(b), p. 172.

The question of the effect of consent of one given to another to maim, on the guilt or innocence of the person committing the act, has not heretofore been presented to this Court. The common law prevails in this State unless changed by statute. Such consent in the instant case is no defense to the action against defendant unless, as contended by him, statutory changes have necessarily abrogated the common law rule.

The last statute enacted by Parliament relative to mayhem prior to the delivery of Blackstone's commentaries was the Coventry Act. He said : 'The last statute, but by far the most severe and effectual of all, is that of 22 & 23 Car. II, C. 1, called the Coventry act; being occasioned by an assault on Sir John Coventry in the street, and slitting his nose, in revenge (as was supposed) for some obnoxious words uttered by him in Parliament. By this statute it is enacted, that if any person shall of malice aforethought, and by lying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any other person, with intent to main or disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy.h Chitty's Blackstone, Book IV, Ch. XV, p. 207. See also Pickering's Statutes at Large, Vol. VIII, pp. 331-334.

At the time of the passage of the Coventry Act the colonization of what is now North Carolina was underway. Indeed the Carolinas were named in honor of Charles II. The common law of England prevailed in the Colony. The law of mayhem as it existed prior tot he passage of the Coventry Act, and as it existed at the time of the Wright decision, was the law of the Colony until 1749. The Coventry Act 'was adopted in North Carolina, October 16, 1749 (23 State Records, 324), but was superseded by Acts 1754, c. 15 (North Carolina Assembly), which provided: 'That if any person or persons * * *, on purpose shall unlawfully cut out or disable the tongue, put out an eye, slit the nose, bite or cut off a nose or lip, bite or cut off or disable any limb or member of any subject of his majesty, in so doing to maim or disfigure in any of the manners before mentioned such his majesty's...