State v. Wilson

• Decision Date: 19 December 1924
• Docket Number: 328A.
• Citation: 125 S.E. 612,188 N.C. 781
• Parties: STATE v. WILSON.
• Court: North Carolina Supreme Court

125 S.E. 612

188 N.C. 781

STATE v. WILSON.

No. 328A.

Supreme Court of North Carolina

December 19, 1924

Appeal from Superior Court, Durham County; Sinclair, Judge.

J. J Wilson was convicted for maiming without malice, and he appeals. New trial ordered.

Brawley & Gantt and J. W. Barbee, all of Durham, for appellant.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

ADAMS J.

The first count in the indictment charges the defendant with maiming the prosecutor by putting out his eye with malice aforethought, in breach of section 4212 of the Consolidated Statutes, and the second count with maiming the prosecutor without malice in breach of section 4211. The verdict was "guilty of maiming without malice aforethought."

It is evident, then, that the defendant was not convicted of the offense defined in section 4212; but it is contended that the verdict may be sustained under section 4640:

"Upon the trial of any indictment the prisoner may be convicted of the crime charged therein or of a less degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a less degree of the same crime."

The specific contention is that the verdict and judgment can be sustained as a conviction for mayhem at common law. It is true the defendant might have been convicted of an assault, or of an attempt to commit a crime, as the statute provides; but it does not necessarily follow that a conviction for the common-law offense can be upheld. The jury found the fact to be that the assault was not made with malice; but malice, according to the authorities, was an essential element in mayhem at common law. In 1 Pleas of the Crown, 393, East says:

"A maim at common law is such a bodily hurt as renders a man less able in fighting to defend himself or annoy his adversary; but if the injury be such as disfigures him only, without diminishing his corporal abilities, it does not fall within the crime of mayhem. Upon this distinction, the cutting off, disabling, or weakening a man's hand or finger, or striking out an eye, etc., are said to be maims; but the cutting off his ear or nose are not such at common law. But in order to found an indictment or appeal of mayhem the act must be done maliciously, though it matters not how sudden the occasion."

After defining mayhem at common law, Chitty points out:

"To bring any wound within this denomination, it is said it must be done maliciously, although it matters not how sudden the occasion." 2 Criminal Law, 784.

"Mayhem was always an offense at common law. * * * To render the act indictable it must be done maliciously." 2 Archbold's Cr. Pr. & Pld. (6th Ed.) 264.

"At common law an indictment for mayhem could be supported only when the act was done with malice." 26 Cyc. 1596.

See, also, 1 Hawkins' Pleas of the Crown by Curwood, c. 15; 2 Reeves' History of the English Law, 34; 1 McClain's Cr. Law, 418, § 436a. The word "malice" or "maliciously," appears in the statutes of 5 Henry IV, c. 5, 37 Henry VIII, c. 6, and 22 and 23 Chas. II, c. 1.

The defendant's second contention that he cannot be convicted of mayhem upon the second count involves the construction of section 4211. While the nose, the lip, and the ear are particularly designated, the word "eye" is omitted from this section. To determine whether it is embraced in the words "any limb or member" we must look into the history of our legislation on the subject.

The statute of 22 and 23 Chas. II, supra, provided for the punishment of malicious mayhem committed by lying in wait, etc. It was adopted in North Carolina, October 16, 1749 (23 State Records, 324), but was superseded by Acts 1754, c. 15, which provided:

"That if any person or persons, from and after the ratification of this act, on

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