
    KEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 12, 1913.
    Rehearing Denied Dec. 10, 1913.)
    1. Mayhem (§ 1) — Offenses—'“Maim.”
    Under the statute providing that to maim is to willfully and maliciously deprive of an ear, etc., the injury must be done willfully and maliciously, and, if it arises from a sudden attack without premeditated design, the offense is not maiming.
    [Ed. Note. — For other cases, see Mayhem, Cent. Dig. §§ 1-5; Dec. Dig. § 1
    
    For other definitions, see Words and Phrases, vol. 5, pp. 4275, 4276.]
    2. Mayhem (§ 1) — Maiming—Extent oe Injury.
    Where the statute prohibits an injury to a member, such as an ear, «te., which disfigures the person, the whole member need not be detached to constitute the offense, but a severance of only a small part, which does not disfigure the person and could only be discovered by close examination, is not an offense under the statute.
    [Ed. Note. — For other cases, see Mayhem, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    3. Mayhem (§ 1) — Offenses—“Willful”-— “Malicious.”
    An act is “willful” within the statute providing that to “main” is to willfully and maliciously deprive of a member, etc., if committed with an evil intent, with legal malice, and without reasonable ground for believing the act to be lawful or legal justification, and is “malicious” if committed in a state of mind showing a heart regardless of social duty and fatally bent on mischief; a wrongful act intentionally done without legal justification or excuse.
    [Ed. Note. — For other cases, see Mayhem, Cent. Dig. §§ 1-5; Dec. Dig. § 1.
    
    For other definitions, see Words and Phrases, vol. 8, pp. 7468-7481, 7835, 7836; vol. 5, p. 4307; vol. 8, p. 7714.)
    4.Mayhem (§ 1) — Offenses—Maiming.
    If a maiming occurred under the immediate influence of sudden passion aroused by adequate cause, such as an assault, the issue of simple assault by accused would not be in the case, though accused only intended to commit a simple assault; Pen. Code 1911, art. 50, providing that if one intending to commit a misdemeanor shall, through mistake, commit a felony he shall receive the lowest punishment for the offense committed.
    [Ed. Note. — For other cases, see Mayhem, Cent. Dig. §§ 1-5; Dec. Dig. § 1.]
    Davidson, J., dissenting in part.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Jesse Key was convicted of maiming, and appeals.
    Affirmed.
    T. F. Hunter, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of maiming, and given two years in the penitentiary.

The evidence is indisputable that appellant bit off a small part of the outer edge or rim of the ear during a fight with the assaulted party, Ashley. Ashley did not testify. The state’s witnesses show that a fight occurred between Ashley and appellant on the sidewalk or street in front of a pool room or billiard hall. The parties- had played pool, and Ashley had raised a disturbance in the pool hall because he had lost the game. Being rather profane, Ashley was ordered out by the keeper of the hall. There is some conflict as to how the parties got out of the-pool hall onto the sidewalk. It seems, however from the evidence that Ashley pulled defendant out. Anyway, after they got upon the street they engaged in a personal altercation. There is evidence that Ashley struck the defendant with a beer bottle and also cut his finger with a knife. These matters are not very important, however, except to show they were engaged in rather an animated personal eneounterl When-they “clinched,” they fell upon the sidewalk, some of the evidence tending to show they had what they call a “dog fall”; but, in any event, appellant obtained the better of the fall and finally got on top of Ashley and was holding him to prevent being cut with a knife. This is his view of the ease, and his testimony is to that effect. He says Ashley was biting his neck, and he concluded he would bite him in the same way Ashley was biting him, so he reached down and thought he was biting upon the neck. Ashley screamed rather vociferously. Some of the parties approached the contestants and touched appellant upon the shoulder and told him to get off, which he did. This is shown by the state’s witnesses, and also by the defendant’s testimony. So it may be stated to be uncontroverted, when appellant got up, or at least when he turned Ashley loose, he spit out of his mouth what he says he discovered to be a part of Ashley’s ear, and what the witnesses show to be a small portion of Ashley’s ear. This is described as being the small portion of the outer rim of it, and. all the witnesses say less than one-third in amount or size of the ear.

Under our statutes, in order to constitute maiming, disfiguring, or the biting of the ear or the member mentioned in the indictment, it must be done willfully and maliciously. If it is not so shown by the evidence, then the offense of maiming is not made out. The statute thus reads: “To maim is to willfully and maliciously cut off or otherwise deprive a person of a hand, finger, toe, foot, leg, nose or ear, put out an eye, or in any way deprive a person of any other member of his body.” Construing this statute, this court in Bowers v. State, 24 Tex. App. 542, 7 S. W. 247, 5 Am. St. Rep. 901, held that the two elements of willfulness and malice must combine. We are of opinion that, if appellant maliciously and willfully bit the assaulted party’s ear so as to disfigure him, he would come within the definition of the statute. If he did not willfully and maliciously do so, although he may have bit the ear, then the offense is not complete, and the evidence would not sustain the conviction. It is also laid down in 26 Cyc. 1598, that under the statutory rule there must be a premeditated design, and, if the injury arises out of a sudden attack unconnected with any premeditated design against the person, the offense is not complete. Quite a number of authorities are cited in support of this in footnote 26 found in the above authority. This rule is in conformity with our statute and seems to lay down the correct’ rule.

It also seems to be a correct rule that, where the inhibition is directed against an injury which disfigures, it is not necessary that the whole member should be mutilated or detached if the injury only impairs comeliness. The authorities also lay down the proposition that the cutting or biting off a small portion of the member which does not disfigure the person, and could only be discovered by close inspection or examination, when attention is directed to it, will not constitute maiming under the statute. This is the rule laid down in the case of State v. Abram, 10 Ala. 928.

This much is said to meet the questions suggested in the motion for a new trial and urged as error here, to wit, the failure of the court to charge upon • simple assault. The court charged upon maiming and self-defense. The trouble between the parties come up in sort of an accidental way growing out of the alleged injured party’s conduct and becoming angry and provoking the difficulty because he had lost a game or two of pool. The fight was an ordinary sudden one, and the testimony indicates it was brought about by Ashley and not the defendant. His testimony clearly raised the issue that it was not willfully and maliciously done for the purpose of disfiguring or maiming, but it grew out of the fact that Ashley was biting him and was an incident and sudden impulse occurring during the fight while they were on the ground. The court fully charged all the issues favorable to the state, and the jury, believing the state’s side of it, gave the minimum punishment in the penitentiary. If the court had charged upon simple assault, the jury may have been more lenient in their verdict and may have agreed with defendant’s view of it. Unless the testimony of willfulness and maliciousness incident to the alleged maiming or disfiguring excludes other theories and is so convincing that no other conclusion could have been reached, then appellant would be in error, and the court would not be required to charge on simple assault or on any minor grade of the offense. We think this rule is laid down by Chief Justice Roberts in Slattery v. State, 41 Tex. 619, but in order to show no error in this respect the evidence must be sufficiently cogent to overcome any idea except willfulness and malice. The issue was raised that it was not maliciously and willfully done (that is, that it was not done by premeditation and deliberation, etc.), and we are of opinion, therefore, the court should have charged on the issue of simple assault. The statute (article 772, Revised Code of Criminal Procedure), in stating, offenses consisting of degrees, under tile third heading, uses this language: “Maiming, which includes disfiguring, wounding, aggravated assault and battery, and simple assault and battery.” Under this clause of the statute we are of opinion that the court should have submitted the issue of simple assault and battery. All the evidence shows the disfiguring was slight, and if it was done without malice and willfulness, and there being no serious bodily injury or circumstance to make it aggravated assault, then the issue of simple assault would be in the case. We are therefore of the opinion that appellant’s attack upon the court’s charge in this respect should be sustained.

The judgment ought to be reversed, and the cause is remanded.

After I wrote the above my Brethren wrote the affirmance.. I have seen no reason to change my views but do not care to write further. '

HARPER, J.

I agree to all the above opinion, except that portion wherein it is held that the case should be reversed ber cause the court failed to submit the issue of simple assault. I do not think the evidence would raise that issue, taking it as stated by Judge DAVIDSON, He says, “Appellant’s testimony clearly raised the issue that the act of maiming was not willfully and maliciously done, but it grew out of a sudden impulse occurring during the fight;’’ and because of this state of facts the court should have charged on simple assault. The fact that appellant hit off a portion of Ashley’s ear is not questioned; that appellant is the person who thus maimed Ashley is .not denied, nor is the fact that Ashley was maimed questioned; then, if the act was willfully and maliciously done, appellant would be guilty of maiming, as defined in our statute, is conceded in the above opinion. The question is: If the act was not done willfully and maliciously, of what offense would appellant be guilty?

The ‘words “willful” and “malicious” are thus defined under our decisions; “A ‘willful’ act is one committed with an evil intent, with legal malice, without reasonable ground for believing the act to be lawful, and without legal justification. A ‘malicious’ act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischief; a wrongful act intentionally done without legal justification or excuse.” Bowers v. State, 24 Tex. App. 549, 7 S. W. 247, 5 Am. St. Rep. 901. It is thus seen that the words “willful” and “malicious” have the same legal meaning in this character of case as do the words “malice aforethought” in a murder ease. White’s Ann. P. C. § 1225, and cases cited.

Following these cases, if the maiming took place under the immediate influence of sudden passion aroused by an adequate cause, the issue of aggravated assault might be presented by the evidence, and the court submitted that issue in a way not complained of by appellant; but in such case the issue of simple assault could not arise. Our Penal Code provides; “If one intending to commit a misdemeanor and, in the act of preparation for of executing the same, shall, through mistake, commit an offense which in law is a felony, he shall receive the lowest punishment affixed by law to the offense actually committed.” Pen. Code 1911, art. 50.

So in this case, if appellant, by the testimony introduced by him, raised the issue that he intended" only to commit a simple assault, yet the facts showing conclusively and beyond dispute that he committed the act of maiming in attempting to execute the assault, the law says, as recited in article 50 of the Penal Code, he shall be guilty of the offense actually committed, to wit, maiming, providing that he shall receive the lowest punishment for that offense. That is the only amelioration given under our laws, and, as appellant received the lowest penalty affixed by law for maiming, we therefore do not agree that the court erred in refusing to submit the issue of' simple assault, but think he ruled correctly in the premises; and, as this is the only ground upon which Judge DAVIDSON thinks the case should be reversed, we think the case should be affirmed, and it is so ordered.

PRENDERGAST, P. J., concurs in Judge HARPER’S opinion.  