
    Chick vs. The State.
    The putting out an eye is a maim, and an indictment under the 55th section of the penal code for putting out an eye, must aver the putting out the eye whereby the party was maimed.
    The grand jury of Davidson county returned a true bill of indictment against Chick. This indictment charged “that Chick, with force and arms, on the 21st day of August, 1844, unlawfully and with malice aforethought, in and upon William Maxey an assault did make, and that the said Reuben Chick then and there unlawfully, feloniously, and with malice aforethought, the left eye of the said Maxey did put out; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.” The defendant was found guilty at the April term, 1845, Turner, judge, presiding, in the Criminal Court. A motion to arrest the judgment having been overruled, the defendant appealed.
    
      Goff, for plaintiff in error.
    In this case we present two objections to the indictment: 1st. That the indictment does not charge that Wm. Maxey was maimed or disfigured.
    The indictment uses the language, “feloniously and with malice aforethought, the left eye of Maxey did put out. The language of the act upon which this indictment is predicated, says: “No person shall unlawfully and maliciously put out an eye, slit, cut off, or bite off, the nose, ear or lip of another, or any part of either of them, whereby any person shall be maimed or disfigured.
    We contend the indictment should have charged that Maxey was maimed and disfigured. The law has set apart and appointed certain words of art for the description of certain of-fences which no other words can supply. As the word Murder, in an indictment for murder, burglary or burglariously in an indictment for burglary, ravished in an indictment for rape, sic felonice mayhemavit, or so feloniously maimed, in an indictment for mayhem, and the word felonious, in every indictment for felony. See Hawkins’ P. C. 176, 177, 224, 225. 1st Chitty Crim. L.,top page, 164, 165, 219. 4th Black, top page, 252. Stark. Crim. P. 80 to 84.
    The reason assigned for this is, that by successive decisions, the legal value and weight of a term or phrase of art, is ascertained, and should a doubt arise as to its meaning, reference for the purpose of removing it, may be had to former authorities, whilst every new expression would introduce fresh uncertainty, and the benefit to be derived from precedent, would be wholly lost. See Starkie Crim. P. 81.
    Not even the fullest description of the offence, were it even in the terms of a legal definition, would be sufficient without keeping close to the expressions of the Statute. 1st Chitty Crim. P., top page, 190.
    The wording of our Statute does not differ materially from the English Statute of Charles 2nd, commonly called the Coventry act. That' Statute says, “if any person shall on purpose of malice aforethought, and by lying in wait, unlawfully cut out or disable the tongue, put out an eye, with intention in so doing, to maim or disfigure, &c. See 3rd Chitty, Crim. L. 217.
    Suppose in framing an indictment under this act, it should charge that A. B., on purpose and of his malice aforethought, and by lying in wait, unlawfully and feloniously put out the eye of C. D. intentionally. Here it would seem, the maiming and disfiguring, although these terms had not been used, would follow as a legal inference from the language used, and the intention too having been charged, we might suppose it a good in-diclment. Yet we see not only from the form of the indictment given — See 3rd Chitty, Crim. L., 219 — but also the rules to be observed in framing the indictment, that it is absolutely necessary there should be an allegation, that the act was done with intent to maim and disfigure. 3rd Chitty, Crim. L., 219. 1st East, Crim. L., 402. The only discoverable difference between this act and our own is, that in the former, the word “intention” is used. The meaning however of the two acts is the same, so made by the proviso, to our act, which says “if any of said offences shall be done in self defence or without malice aforethought, then the person charged shall be excused, &c.
    We think it manifest under our act, if a man had no malice, and should, in an affray, not intending to commit a felony, put out the eye of his adversary, that he would not be guilty of a mayhem, within the. meaning of our act. The intention then becomes as necessary an ingredient in constituting this offence under our act, as it is under the Coventry act. Our act, instead of using the word “intent” uses the language “whereby” he was maimed or disfigured. Coupling this language then with the malice aforethought, it becomes synonymous with the Coventry act. It was not necessary under the Coventry act, that a man should intend to maim or disfigure. If he intended a higher crime (such as murder) and fell short of his design, and maimed or disfigured, he was guilty, but still it is necessary to charge the intent in the indictment. 3rd Ch. Crim. L., 218.
    We think, then, by parity of reasoning, it becomes as necessary under our act to state in the indictment after other charges, “whereby the appellor was maimed and disfigured,” as under the English Statute, to charge that the act was done, with intent to maim and disfigure. We have been unable to discover either from authority or reason, why this should not be the case.
    The 2nd objection to this indictment is, that the means or mode by which the offence was committed, has not been set forth, and we are sustained by authority in saying, that this is as necessary in an indictment for mayhem as murder. The indictment must state the circumstances, and show whether the eye was put out,' by throwing a stone, by striking with the ñst or stick, by striking, by cutting with a knife, or by gouging.
    So far as this indictment charges, we are left in the dark as to the instrument or means used by which it was done; whether it was done by all, or either one of the modes here'mentioned, the indictment does not inform us. That this is necessary, see 2nd Hawkins, 177, 225. 1st East, P. C., 402. 1st Ch. C. L., 169, 171. 1st Devereux & Battle, 408. Archbold, 41. 1st Rus. on Cr., 557,560. The reason and necessity of charging in the indictment the facts and circumstances connected with the mayhem or killing, as the case may be, is obvious. It is done in order that the defendant’s conviction or acquittal may insure his subsequent protection, should he be again questioned upon the same ground. See State vs. Field, Mar. & Yer. 137.
    In this indictment there is no language used by which we can infer the manner or means used in putting out the eye; it simply says Chick made an assault upon Maxey, and unlawfully, feloniously and with malice aforethought, put out his eye. How he put it out is a question that would be asked by every one. The authorities last quoted, state that the description is indispensable, and all the forms given us contain such description. See Ch. Crim. L. 219: Arch. 354.
    
      Attorney General, for the State.
    
      Houston, for the plaintiff in error.
   Green, J.

delivered the opinion of the court.

The plaintiff in error was indicted in the Criminal Court of Davidson county, for putting out the eye of William Maxey.

The indictment charges that Chick, “unlawfully and with malice aforethought, in and upon ‘one William Maxey an assault did make, and that the said Reuben Chick, then and there, at the county aforesaid, unlawfully, feloniously, and with malice aforethought, the left eye of the said William Maxey did put out.”

The clause of the statute upon which this indictment is framed is in the following words: “No person shall unlawfully and maliciously put out an eye; slit, cut off', or bite off the nose, ear or lip of another, or any part of either of them, whereby any person shall be maimed or disfigured.”'

The plaintiff in error was found guilty in the court below, and having moved in arrest ofjudgment, which was overruled, he appealed to this court.

The only question is, whether the offence is sufficiently charged in the indictment. The indictment does not charge, that the prosecutor, Maxey; was maimed or disfigured, but only that “the said Reuben Chick, then and there, at the county aforesaid, unlawfully, feloniously, and with malice aforethought, the left eye of the said William Maxey did put out.”

The counsel for the plaintiff in error, insist that the indictment should have charged, that the prosecutor was maimed and disfigured; and that not having been done, it is bad.

It is unquestionably true, that an indictment for mayhem at common law, in addition to the statement of the injury, must also charge, that the party was thereby “maimed.” The word “maimed” is a word of art, which the law has set apart for the description of the offence, which no other word can supply. Hawkins’ P. C. 176, 224: Chit. Crirn. L. 164, 219: 2 Black. 252.

It is admitted by the Attorney General, that this indictment would not be good at common law; but he contended that this indictment charges the offence in the words of the statute; that the clause which forbids the putting out an eye, is separated from the clause that follows, so that the words “whereby any person shall be maimed or disfigured, do not apply to it.

This, in our opinion, is not the true reading of the statute. The sentence must be taken together, and the concluding words must be applied to each description of injury mentioned in it, to which they properly relate. The injuries mentioned are, the putting “out an eye; to slit, cut off, or bite off the nose, ear or lip, whereby any person shall be maimed or disfigured.” Now the word “maimed,” here used, has no application to any of the injuries mentioned, except the putting out an eye.

Slitting, or cutting off the nose, ear or lip, (the other injuries mentioned,) would neither of them, constitute a mayhem; but they would disfigure the person. Hence the statute, in this sentence, having enumerated one injury that is a mayhem, and several others that are not, but only disfigure, concludes very properly, “whereby any person shall be maimed or disfigured.” The true reading of the statute, therefore, is; “No person shall unlawfully and maliciously put out an eye of another,” “whereby any person shall be maimed; or slit, cut off or bite off the nose, ear or lip of another, or any part of either of them, whereby any person shall be disfigured.”

The very words of the statute, therefore, in stating the injury, adds also the word of art, by which the common law designates it. There is, then, nothing in the statute, which authorizes a departure from the requirements of the common law; and although the objection may seem to be one of technical form merely; yet we do not feel at liberty, in cases of felony, to depart from the strictness of legal proceedings, which the wisdom of ages has deemed essential for the protection of the citizen.

The judgment must be arrested, and the defendant must ,be bound to appear at the Criminal Court of Davidson county, to answer such charge as the District Attorney General may prefer against him.  