State v. Johnson

• Decision Date: 10 May 1898
• Citation: 58 Ohio St. 417,51 N.E. 40
• Parties: STATE v. JOHNSON.
• Court: Ohio Supreme Court

51 N.E. 40

58 Ohio St. 417

STATE v. JOHNSON.

Supreme Court of Ohio.

May 10, 1898

Exceptions from court of common pleas, Perry county.

David Johnson was indicted, in two counts, for mayhem. He was acquitted on one count, and a demurrer sustained to the other. The state brings exceptions to the ruling on the demurrer. Exceptions sustained.

Syllabus by the Court

1. ‘Maim’ and ‘mayhem’ are, at common law, equivalent words, and mean the same thing. Therefore, a count in an indictment charging the defendant with maliciously biting the ear of another with intent to maim cannot be supported as to the particular intent charged, as the biting of an ear does not, in law, constitute a maiming.

2. Nor can a conviction be had on such a count for biting the ear with intent to disfigure, under section 7316, Rev. St permitting a conviction of an inferior degree of the offense charged, as a biting with intent to disfigure is not inferior to a biting with intent to maim, under section 6819. Both offenses are of the same degree. Barber v. State, 39 Ohio St 660.

3. Under an indictment charging an injury to the person of another with intent to maim or disfigure, the party may be convicted of an assault and battery, under the provisions of section 7316, Rev. St.; the offense charged being simply an aggravated assault and battery.

J. B Williams, Pros. Atty., for plaintiff in error.

Maurice H. Donahue, counsel appointed by the court to argue exceptions.

Thos B. Williams, Pros. Atty., for the State.

MINSHALL, J.

David Johnson was prosecuted on an indictment presented by the grand jury of the county, framed on the provisions of section 6819, Rev. St. The section, so far as it is applicable to this case, is as follows: ‘Whoever with malicious intent to maim or disfigure, cuts, bites, or slits the nose ear or lip, cuts or disables the tongue, puts out or destroys an eye, cuts off or disables a limb or any member of another person,’ is declared guilty of an offense punishable by imprisonment in the penitentiary. The indictment contained two counts. In the first it was charged that he maliciously ‘did bite the ear of one Reuben Mitchell with intent to disfigure’; and in the second, that he maliciously ‘did bite the ear of one Reuben Mitchell with intent to maim.’ A demurrer was sustained to the second count, and, on a plea of not guilty, he was acquitted on the first count. The prosecuting attorney took a bill of exceptions to the ruling on the demurrer to the second count, and prosecutes the same here, under the provisions of the statute in that regard, to test the accuracy of the ruling.

The demurrer presents the question whether the malicious biting of the ear of another can be charged as done with intent to maim. There is no question, we think, but that ‘maim’ (as a noun) and ‘mayhem’ are equivalent words, or that ‘maim’ is but a newer form of the word ‘mayhem’; the difference being in the orthography, and not in the sense. Webst. Dict ‘Maim’ (as a noun) is there defined the same as ‘mayhem’: ‘The privation of the use of a limb or member of the body, by which one is rendered unable to defend himself, or to annoy his adversary.’ This is the definition of ‘mayhem’ at common law. 1 East, P. C. 393; 1 Whart. Cr. Law, § 581. Hence the verb ‘to maim’ is accurately defined in Anderson's Law Dictionary as follows: ‘To commit mayhem.’ So, at common law, whatever the injury to any member of the body might be, if it did not permanently affect the physical ability of the person to defend himself, or annoy his adversary, it did not amount to mayhem. Neither the biting of an ear, nor the slitting of the nose, was regarded as an injury of this character. Clark, Cr. Law, 182; 3 Bl. Comm. 121. The outrage upon Sir John Coventry, who had been set upon in the street, and his nose slit, for words spoken in parliament, led to the adoption of what is known as the ‘Coventry Act.’ 22 & 23 Car. II. This act made it a felony, without benefit of clergy, where any one unlawfully cut out or disabled the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disabled any limb or member of any other person, with intent to maim or disfigure him. 4 Bl. Comm. 206. Our statute is substantially...