
    State of Ohio v. Johnson.
    
      Maim and mayhem at common law — Biting of an ear not maiming —Section 78X6, Revised Statutes — Assault and battery.
    
    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, Revised Statutes, 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 6718, Revised Statutes. 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, Revised Statutes ; the offense charged being simply an aggravated assault and battery.
    (Decided May 10, 1898.)
    On Exceptions of the prosecuting attorney to the rulings of the Court of Common Pleas of Perry county.
    
      T. B. Williams, prosecuting attorney, for plaintiff in error.
    Mayhem at common law was the violently depriving a man of one of the members of his body, which would render him less able to defend himself in a fight or annoy his adversary.
    The biting of an ear did not constitute the crime of mayhem at common law. 14 Amer: and Eng. Ency., 985, and cases cited.
    Mayhem at common law and maiming under section 6819 are not synonymous. Walker’s American Law, (10th ed.) 602.
    
      There was no such crime as maiming • at common law. 4 Blackstone (Ohitty’s Ed. of 1891) 205-207.
    Finally the statute of 22 and 23 Car. 2 chap. 1, called the “Coventry act,” was passed. 4 Black, (Chitty’s Ed.) 207. And that act was the same as section 6819, of our law, except the latter part of one section was not in the above act. The above act existed in England for a number of years until it was repealed, together with the original crime of mayhem, by sections 11 and 12 of the act of 9th G. 4 chap. 31; 4 Black., (Ohitty’s Ed. 194), note 1. The conclusion of said section 12 was “with the intent to maim, disfigure, or disable any such person.”
    As we have no common law crimes in Ohio, the legislators intended that the word maim in - section 6819 should apply to all permanent injuries, whether such permanent injury amounted to mayhem at common law or not. Bish. Statutory Crimes, sections 316, 448; 2 Bish. Or. L., sections 1001, 1005; State v. Bail/y, 8 Part (Ala.), 472; Turnman v. State, 4 Texas App., 586 ; Baker v. State, 4 Ark., 56.
    The second count was valid and could resist a demurrer. United States v. Gunther, (Dak.) 38 N. W. R., 79; American Annual Digest of 1888, page 888, section 7.
    Under a statute making- it a misdemeanor to cut off the ear with the intent to maim, the court observed that the word was used in the popular sense of mutilate and not as synonymous with mayhem. Com. v. Newell, 7 Mass., 245.
    The biting of an ear is maiming. 1 Wharton Prec. of Ind., 227, note 1; 22 and 23 Car. 2 Chapt., 1; 14 Amer. and Eng. Ency., 987-988, note 5.
    
      This court observed that the disabling of a limb was maiming under section 6819. Bidenowr v. State, 38 Ohio St., 274.
    We claim that the gist of the offense is either to maim or disfigure. The two counts in this indictment were upon the same transaction, and it was a question of fact for the jury to determine from the evidence whether he intended to maim of disfigure. Bailyv. State, 4 Ohio St., 440; Jackson v. State, 39 Ohio St., 37; Hotelling v. State, 3 C. C. R., 630; 2 O.D., 336; Beasley v. People, 89 111., 571; Com. v. Andrews, 132 Mass., 263; State v. Smith, 24 W. Va., 814; State v. Baily, 50 Ohio St., 641.
    Upon the same principle it would seem that where two similar and closely allied offenses arise from the same transaction and each must be established, if at all, by substantially the same evidence, each should be permitted to be set forth in separate counts of the same indictment. People v. Slatterly, 12 Hun., 167; Hogan v. State, 61 Da., 40; Com. v. Ishmahl, 134 Mass., 201; People v. Sweeny, 55 Mich., 586; Armstrongs. People, 70 N. Y., 38.
    
      Maurice H. Donahue, counsel appointed by the court to argue exceptions.
    
      Thos. B. Williams, prosecuting attorney, for exceptions.
    The prosecutor claims that the word maim, as used in section 6819, of the Revised Statutes of Ohio, and the word mayhem, at common law, are not synonymous, but that maim under said section means and includes all classes of permanent injuries, whether said permanent injuries amount to mayhem at common law or not. He does not define the word disfigure.
    
      Now, if his logic is correct on this proposition, the words maim and disfigure, which appear in the text of this statute, must be synonymous terms, for the reason that all injuries contemplated in said statute are, in their nature, necessarily permanent injuries. If the words maim and disfigure are synonymous, why does not the statute contain the word maim only, or the word disfigure only, without using both terms? It seems to us, upon all rules for the construction of statutes, that the legislature understood and intended the word maim and the word disfigure to mean wholly distinct criminal acts. Bishop on Statutory Crimes, sections 82, 88, 93,96.
    If the words maim and disfigure are, as claimed by the state in this action, synonymous, (viz: meaning a permanent injury merely) then the legislature has inserted in this statute either the word “maim” or “disfigure,” idly and without meaning — which amounts to gross tautology. This it seems to us, cannot have been the intention of the legislature from the text itself. Cooley’s Con. Limitations, (6th ed.) page 72; Attorney General v. Detroit <& Erin Plank Road Go., 2 Mich., 138 ; People v. Bwrns, 5 Mich., 114; Manly v. State, 7 Md., 135; Parkinson v. State, 14 Md., 184; Raib'oad Company v. G^'egory, 15 111., 20; Ryegate v. Wm-dsboro, 30 Vt., 746; Den v. Dubois, 16 N. J., 285; Bigelow v. Railroad Go., 27 Wis., 478; Grawfordsville, etc., Go., v, Foetoher, 104 Ind., 97.
    If, then, the legislature did not place these words in the statute idly and without distinct meanings, we must undertake to distinguish between the meaning of the word maim and the word disfigure. Cooley’s Con. Lim., pages 74 and 75; State v. Noble, 118 Ind., 350; 10 Pick., 407 and 409; 2 Met., 408 ; 8 Mass., 418; 2 Bailey, 541 and 554; 3 Mass., 296; Bex v. Morris, 1 B. & Ad., 441; 5 Md., 11; US. v. Freeman, 3 How., 556; 12 N. H., 284; 42 N. Y., 177; Bishop on Statutory Crimes, page 67; Bex v. Palmer, 1 Leach, 4 ed., 352 and 355; Commonwealth v. Slack, 19 Pick., 304; Crespigny v. Wittenoom, 4 T. R., 790; Anderson: (Law Dictionary, page 646.) “To commit mayhem.” The author cites Bidenour v. State, 38 Ohio St., 273.
    Bouvier’s (Law Dictionary, page 94): Maim, pleadings. This is a technical word necessary to be introduced into all indictments for mayhem. 4 Inst., 118; Hawk. B. 2. c. 23. s. 17, 18, 77; Hawk. B. 2. c. 25. s. 55; 1 Chit. Cr. Law, 244.
    Following the rules of construction of statutes, it seems to us plain that the legislature in using the word maim and the word disfigure, intended by the word maim to designate all such criminal acts as were included in the common law term, mayhem, and to add thereto certain other criminal acts, which are designated by the word disfigure; and, if this be true, then this statute contemplates and provides punishment for two distinct and separate classes of crime, and becomes plain and consistent. Story on Const., section 407; Evans v. Meyers, 25 Pa. St., 116; Sadler v. Langham, 34 Ala., 311; Barnes v. Fvrst Parish in Falmouth, 6 Mass., 401; Union Pacfic B. B. Co. v. U. S., 10 Ct. of Cl.Rep., 548; s. c. in error, 91 U. S., 72; Cooley’s Con.Lim., page 84; Whar. Am. Crim. Law, (9 ed.) section 581; Bouvier’s Law Die., volume 2, page 94 ; 4 Bl. Com., page 646; Pulton, De Pace Regis., fol. 15, section 58; 1 East P. C., 393; B. v. Hagan, 8 C. & P., 169; Moore's Lessees v. Vance, 1 Ohio, 10; Turney v. Yeoman, 14 Ohio, 218; Crogan v. Carrison, 27 Ohio St., 63; Gray v. Askew, 3 Ohio, 466. Bishop Statutory Crimes, note 4 to section 316. Bishop’s Criminal Law, volume 2, section 1001, division 1 and 2.
    It further seems to us, that the claim of the state upon this question resolves itself into an absurdity in any event, for, if as claimed, in the brief of the prosecuting attorney, the word maim includes all permanent injuries and consequently includes disfiguring under this statute, we think it idle to have charged this defendant in one count with biting the ear with intent to maim, and in another count with biting the ear with intent to disfigure, the two counts ‘ being logically identical in meaning, and therefore-one or the other thereof surplusage, and subject to being stricken from the indictment. If this be true, in what was the state injured by the demurrer being sustained. Wharton’s Crim. Law, 141; Eggleston v. State, 41 la., 574; State v. Benham, 7 Conn., 414; State v. Hennesy, 23 Ohio St., 339; Bishop’s Crim. Procedure, volume 1, sections 482-483; Hinkle v. Commonwealth, 4 Dana, 518 ; Devere v. State, 5 C.C., 509 ; 3 C. D., 249.
    And again, how is the state prejudiced when defendant has been acquitted on the first count, it being' the lesser crime of the two and necessarily included in the second count.
   Minshall, J.

David Johnson was prosecuted on an indictment presented by the grand jury of the county, framed on the provisions of section 6819, Revised Statutes. 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 axxother 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. Webster’s Unabridged Dictionary: “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 Whar. Cr. Law, section 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’s Cr. Law, 182; 3 Bl. Conn., 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 and 23 Char. 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. Com., 206. Our statute is substantially the same. Any of the injuries there named, done with the intent “to maim or disfigure” is punishable by imprisonment in the penitentiary. Whether it be the biting of an ear, or the putting out of an eye, or the cutting off of a hand, each is alike regarded as a crime and punished the same way; or, in other words each is of the same degree of criminality. Section 7316, Revised Statutes.

The question in the case is, whether the second count in the indictment charges an offense against the laws of the state? It does not for reasons stated charge a maiming. Then does it charge the offense of biting the ear with intent to disfigure ? Such intent is not averred in the count; and, unless the intent to maim includes the intent to disfigure, there can be no conviction on the second count for such an offense. Evidence of an intention to disfigure would be a fatal variance from the intent laid in the count. The intent in this case must depend upon the nature of the injury, in connection with the character of the member on which it is inflicted. If the member be not one of use to the person in defending himself, an injury to it cannot be said to have been done with intent to maim. It is provided, among other things, in section 7316, Revised Statutes, that: ‘‘ When the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree.’’ In Barber v. State, 39 Ohio St., 660, it was held that the offense of cutting with intent to kill, and that of cutting with intent to wound are offenses of the same degree, under the provisions of sections 6820, Revised Statutes, making it an offense for any one to cut another person “with intent to kill, wound or maim.” The indictment charged a cutting with intent to kill; the verdict of the jury was, “guilty of cutting' with intent to wound.” The court held that the indictment was not supported by the verdict, for the reason that the offense of cutting with intent to wound is not an offense inferior in degree to that of cutting with intent to kill. By a parity of reasoning it follows that the unlawful biting of the ear with intent to disfigure is not an offense inferior to that of biting it with intent to maim; and an indictment charging' the biting to have been done with intent to maim, would not be supported by evidence of an intent to disfigure — there would in such case, be a material variance between the proof and the allegation.

But this does not exhaust the inquiry, for the question remains, does the count charge any offense against the laws of the state, if so the court erred in sustaining a demurrer to it. Now, it seems apparent that the malicious biting of the ear of another, whether to maim or disfigure, amounts to an assault and battery — an offense inferior in degree to an assault with intent to maim or disfigure — the offense charged being simply an aggravated form, of assault and battery of which the defendant could have been convicted on the count demurred to, on proof of such an offense. Heller v. State, 23 Ohio St., 582; Barber v. State, supra; 3 Bl. Com., 121.

For this reason the court erred in sustaining a demurrer to it.

Exceptions sustained.  