State v. Cody

• Decision Date: 11 February 1890
• Citation: 23 P. 891,18 Or. 506
• Parties: STATE v. CODY.
• Court: Oregon Supreme Court

23 P. 891

18 Or. 506

STATE v. CODY.

Supreme Court of Oregon

February 11, 1890

Appeal from a judgment of conviction of the appellant rendered by the circuit court for the county of Multnomah, for an alleged crime. The appellant was indicted in said court for feloniously cutting, slitting, and mutilating the lip of one Joseph Morin. He pleaded not guilty to the indictment; was tried thereon by jury; found guilty as charged; and sentenced to imprisonment in the penitentiary of the state for one year; from which sentence this appeal was taken.

For dissenting opinion, see 24 P. 895.

(Syllabus of the Court.)

In order to justify a conviction under section 1735, Code Or of "Crimes and their Punishments," which provides among other things, that, "if any person shall purposely and maliciously, or in the commission or attempt to commit a felony, * * * cut or slit or mutilate the nose or lip * * * of another, such person shall * * * be punished by imprisonment in the penitentiary not less than one, nor more than twenty, years," the evidence must show beyond a reasonable doubt that the accused did the cutting, slitting or mutilation purposely, deliberately, and designedly, unless done in the commission or attempt to commit a felony.

. Where the accused in a criminal prosecution was charged with having purposely and maliciously cut, slit, and mutilated the lip of M., contrary to the provisions of the section of the Code above referred to, and it appeared from the evidence given at the trial that in a flight between the accused and M., which arose out of a sudden heat of passion, the tissue of the inner lining of M's lower lip was lacerated, and a piece thereof taken out, leaving a wound, testified to as being about three-fourths of an inch long and a half an inch wide and a fourth of an inch deep, which M. testified was done by the accused biting the lip during the fight: that the wound at the time of the trial had healed over, leaving, however, a visible scar; that the fight was a hand affair, in which no weapons were employed; but it did not appear from the evidence that the injury to the lip was specially intended or inflicted otherwise than as incidental to the fight,-- held, that the evidence was not sufficient to authorize the conviction of the accused of crime as charged in the indictment.

It is the duty of a trial court to instruct the jury, in a criminal prosecution, where the offense charged necessarily includes a lesser offense that they have a right to find the accused guilty of the latter; where there is a doubt as to his guilt of the former; and where it appears from the record that the instruction was not given in such case, held, that it was error which the accused could take advantage of upon appeal, without having interposed any exception.

Held, further, that the accused in a criminal prosecution does not waive an error committed by a trial court in neglecting the performance of a duty enjoined upon it by law, and which it is required to perform of its own motion, by his failing to call the attention of the court to the fact, or by his not excepting to the matter of neglect.

A.F. Sears and F.D. Winton, for appellant.

Henry E. McGinn, Dist.Atty., for respondent.

THAYER, C.J., (after stating the facts as above.)

The appellant was indicted under section 1735, Code Or., of "Crimes and their Punishments," which reads as follows: "If any person shall purposely and maliciously, or in the commission or attempt to commit a felony, cut or tear out or disable the tongue, put out or destroy the eye, cut or slit or tear off an ear, cut or slit or mutilate the nose or lip, or cut off or disable the limb or member, of another, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than one, nor more than twenty, years." A demurrer was interposed to the indictment, which the circuit court overruled, and the appellant thereupon pleaded not guilty. A trial was then had, which resulted in the appellant's conviction of the crime as charged; and from which he has appealed to this court, and assigned several grounds of error upon which he relies on the appeal.

One of the ground is that the evidence in the case was not sufficient in law to authorize the conviction. This raises an important question for our consideration, involving a construction of said statute. It appears that, after the evidence was closed, the appellant's counsel moved the court that, upon all the testimony in the case, it direct a verdict for the appellant, and that he be discharged; or that the court instruct the jury that the appellant could not be convicted of the crime of mayhem, for that the evidence was insufficient to justify the same, and that the indictment failed to charge any facts constituting such offense; that the court refused to allow said motion, and to make said order or any part thereof, and to which the appellant's counsel excepted; that the court in its instructions to the jury, among others, charged that if a person with the teeth should cut, slit, or mutilate the lip of another, that would make it mayhem under said section of the statute; that that was a question of fact for the jury to determine under the law and the evidence, as it had been submitted to them, as to whether or not the appellant was guilty of the crime. To the charge of the court the appellant's counsel excepted, upon the ground that the court failed to instruct the jury that the evidence was insufficient to justify a conviction of the crime of mayhem attempted to be charged in the indictment, and that the facts therein stated failed to constitute such crime.

The bill of exceptions purports to contain all the evidence in the case, and hence the point of the said exception is fairly presented. The evidence shows that the alleged cutting, slitting, and mutilation occurred in a fight between the appellant and the said Joseph Morin, which took place at the Holton House, in Portland, on the 16th day of March, 1889, the time charged in the indictment as the time of the commission of the offense. It appears that said parties at said time were employed at the Holton House; that the appellant had been employed there for more than three years as runner, and that Morin had been employed there about six months as porter; that upon the occasion referred to the appellant accused Morin with having slapped the bell boy, and that the parties immediately engaged in the fight. The evidence is conflicting as to which of them begun it, each claiming that the other struck the first blow. Morin testified that he came into the office, and was sitting by the elevator talking to some one, when the appellant called him to the desk, where he was writing a message, and said to him: "The next time you raise your hand on that boy I'll break your neck." He replied that he did not raise his hand on the boy; whereupon the appellant called him a liar, and struck him. The appellant, on the other hand, testified that he was writing a telegram at the desk in the office of the hotel when the boy came to him crying, and said that Morin had been beating him again; that, upon seeing Morin, appellant asked him why he could not let that boy alone,--why he wanted to be whipping him all the time; told him that he was not the boy's boss, and had no more right to beat him than he (appellant) had a right to beat him, (Morin;) to which the latter replied that it was none of his business, and that he would fight appellant, and thereupon struck appellant. Other witnesses testified in regard to the commencement of the affair, and the most of them corroborated the appellant's testimony upon that point.

But, whatever the truth may be in regard to that fact, it is evident that the parties very hastily engaged in the contest on both sides; that they clinched and struggled among the baggage and tables; and finally separated, after Morin said he had enough of it. Morin claimed in his testimony that during the mélee his lip was lacerated, his thumb and one of his fingers injured, and one cheek bruised, and that it was caused by the appellant biting him. It seems that he was very much excited and exasperated at the time; so much so that, immediately after their separation, he went and got his pistol, and fired five shots at the appellant, had a tussle with other parties who were attempting to wrest the pistol from him, and ran off towards the bluffs back of the city; but he finally became more composed, and returned, and gave himself up to the police. The wound on Morin's lip is the only one necessary to be considered, and its importance is not in consequence of its severity, but of its locality.

Under the construction of said section of the Code claimed by the counsel for the state, and which seems to have been given to it by the circuit court, in this case, a wound inflicted upon the tongue, lip, or nose of a person, by whatever means occasioned, would, if it resulted in a "cutting" of one of those organs, render the party who inflicted it guilty of a felony, which, if made upon some other part of the person, although it were far more severe, would only amount to assault and battery. The counsel for appellant strongly insisted that the injury to the lip was not caused by biting but that it evidently resulted from the blow shown by the testimony to have been struck by appellant upon Morin's mouth after he was released from appellant's hold; claiming that the lip was thereby necessarily forced against his own teeth, and that it produced the laceration. But if the injury had been caused in that way, and it thereby caused a cutting of the lip, within the meaning of said provision of the statute, the same liability, so far as I can see, would attach. The question,...