The State v. Fisher

• Decision Date: 20 November 1885
• Docket Number: 12,697
• Citation: 3 N.E. 379,103 Ind. 530
• Parties: The State v. Fisher
• Court: Indiana Supreme Court

3 N.E. 379

103 Ind. 530

The State v. Fisher

No. 12,697

Supreme Court of Indiana

November 20, 1885

From the White Circuit Court.

The appeal is sustained, at the cost of the appellee.

W. C Smith, Prosecuting Attorney, W. S. Hartman, A. W. Reynolds and E. B. Sellers, for the State.

R Gregory, for appellee.

OPINION

Zollars, J.

Section 1912, R. S. 1881, provides, that whoever purposely and maliciously, with intent to maim or disfigure cuts, bites or slits the nose, etc., or puts out or destroys an eye of another person, etc., is guilty of malicious mayhem, and upon conviction thereof shall be imprisoned in the State prison not more than fourteen years, nor less than two years, and be fined not more than $ 2,000.

The following section, 1913, provides, that whoever violently and unlawfully deprives another of the use of any bodily member, or unlawfully and wilfully disables the eye, etc., of another, is guilty of simple mayhem, and upon conviction thereof shall be fined not more than $ 2,000, nor less than $ 5, and shall be imprisoned in the county jail, not more than six months, nor less than twenty days. Appellee was indicted for malicious mayhem.

The indictment charges that he feloniously, purposely and maliciously destroyed the eye of another, with intent thereby, feloniously, purposely and maliciously to maim him.

The court refused instructions asked by the State, which were, in substance, that if the jury were not satisfied by the evidence beyond a reasonable doubt, that appellee was guilty of malicious mayhem, but were convinced by the evidence beyond a reasonable doubt, that he was guilty of simple mayhem, or of an assault and battery, they might acquit him of malicious mayhem, and convict him of simple mayhem or of assault and battery. The court gave the following: "Proof showing the defendant guilty of assault and battery only, or of mere simple mayhem, will not be sufficient to sustain this charge. The question here is, whether the defendant is guilty of the crime of the malicious mayhem with which he is charged." The State excepted to the refusal of its instructions, and to the giving of the court's charge. Appellee was acquitted. The State appeals.

The question presented by the record, and upon which the State asks the judgment of this court is: Can a person charged with malicious mayhem, if the evidence warrants it, be convicted of simple mayhem, or of an assault and battery? We think that question must be answered in the affirmative. If a person purposely and maliciously put out or destroy the eye of another, with the intent to maim him, he is guilty of malicious mayhem. If he violently and unlawfully put out or destroy the eye of another, but without malice, he is guilty of simple mayhem, or, it may be, of an assault and battery only, according to the evidence. Malicious intent is the only thing that distinguishes malicious mayhem from simple mayhem. An assault and battery and simple mayhem are necessarily included in malicious mayhem, Add to an assault and battery mayhem and malicious intent. and we have the offence of malicious mayhem. Add to mayhem malicious intent, and we again have malicious mayhem. Malicious mayhem can not be proven without proving necessarily an assault and battery and mayhem.

The statute provides that upon an indictment for an offence consisting of different degrees, the jury may find the defendant not guilty of the degree charged, and guilty of any degree inferior thereto, or of an attempt to commit the...