State v. Enkhouse
| Decision Date | 02 October 1916 |
| Docket Number | 2231. |
| Parties | STATE v. ENKHOUSE. |
| Court | Nevada Supreme Court |
Appeal from District Court, Humboldt County; Edward A. Ducker Judge.
J. F Enkhouse was convicted of mayhem, and he appeals. Affirmed.
Salter & Robins, of Winnemucca, and Frame, Humphrey & Harcomb, of Reno, for appellant.
George B. Thatcher, Atty. Gen., and H. C. Price, Deputy Atty. Gen for the State.
This is an appeal from a judgment of conviction of the crime of mayhem.
It is contended by appellant that the information does not state facts sufficient to constitute the offense for which the defendant was convicted; that the court below erred in the giving and refusal of certain instructions and in fixing the minimum of punishment at 5 years' imprisonment; that the evidence is insufficient to support the verdict.
The charging part of the information reads as follows:
"That the said defendant, J. F. Enkhouse, did then and there willfully, unlawfully, and feloniously deprive one J. A. Cavaney, a human being, of a member of his body, and did disable and disfigure said member in the manner following: That the said defendant, at the county of Humboldt, state of Nevada, on the date aforesaid, did then and there willfully, unlawfully, and feloniously bite off with his teeth a portion of the right ear of the said J. A. Cavaney, then and there being, and thereby disabled and disfigured said ear."
The crime of mayhem is defined and governed by sections 151 to 153, inclusive, of the Crimes and Punishments Act (Rev. Laws, §§ 6416-6418), which read:
"Sec. 151. Mayhem consists of unlawfully depriving a human being of a member of his or her body, or disfiguring or rendering it useless. If any person shall cut out or disable the tongue, put out an eye, slit the nose, ear, or lip, or disable any limb or member of another, or shall voluntarily, or of purpose, put out an eye or eyes, every such person shall be guilty of mayhem. * * *
Sec. 152. To constitute mayhem it is immaterial by what means or instrument or in what manner the injury was inflicted.
Sec. 153. Whenever upon a trial for mayhem it shall appear that the injury inflicted will not result in any permanent disfiguration of appearance, diminution of vigor, or other permanent injury, no conviction for maiming shall be had, but the defendant may be convicted of assault in any degree."
The information was not demurred to. We think the objections to the information ought not to be regarded as well taken, at least in the absence of demurrer. The crime of mayhem is defined in section 151, supra, and it is sufficient that the offense be charged in the language of the statute or its equivalent. While it is essential, under the provisions of section 153, supra, that the proof show that the injury or disfiguration is permanent, in order to warrant a conviction for mayhem, the definition of the crime prescribed in section 151 makes no reference to the permanency of the injury or disfiguration. 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 are clearly of the opinion that if there is any merit in the contention that the information should specifically allege the injury or disfiguration to be permanent in character, that the objection is of a nature which should be taken advantage of by demurrer.
It is conceded by counsel for appellant that if the information had charged appellant with unlawfully and maliciously slitting the ear of the said Cavaney, the information would have charged the crime per se, but because it is only charged that the appellant bit off a portion of the right ear, such allegation is not the equivalent of charging a slitting of the ear. While the word "slit" may have a broader definition than the word "bite" (People v. Demasters, 105 Cal. 669, 39 P. 35), the information in question here charges that the appellant did "bite off with his teeth a portion of the right ear * * * and thereby disabled and disfigured said ear." The information, therefore, charges a completed act, which completed act is equivalent to a slitting of the ear, for, by the provisions of section 152, it is immaterial by what means the injury or disfigurement is effected.
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