person, or to commit any felony upon him or her, or upon or in any dwelling house in which such person is; or, 2. When committed in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress or servant, when there is a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and imminent danger of such design being accomplished; or, 3. When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed; or in lawfully suppressing any riot; or in lawfully keeping and preserving the peace. 2 Rev. Stat., 660, § 3. CHAPTER III. MAIMING. SECTION 263. Maiming another person defined. 264. Maiming one's self to escape performance of a duty. 265. Maiming one's self to obtain alms. 266. What injury may constitute maiming. 267. What disfigurement may constitute maiming. 268. Designing to maim, &c. 269. Premeditated design. 270. Subsequent recovery of injured person, when a defense. another person S 263. Every person who, with premeditated design Maiming to injure another, inflicts upon his person any injury defined. which disfigures his personal appearance, or disables any member or organ of his body, or seriously diminishes his physical vigor, is guilty of maiming. Definitions of mayhem found in several of the more familiar English authorities confine the offense to such wounds as impair the powers of attack or defense; the gravamen of the offense being deemed to consist in the disability for self protection which it creates. (Consult 4 Blackst. Comm., 205, 150; 1 Coke, Inst., § 502.) Earlier authorities, however, are to be found giving the word a more extended signification. Thus, Pulton (De Pace Regis, 1609, fol. 15, §§ 58 and 59) says: “Mai Maiming one's self to escape the per 64 heming is when one member of the commonweale shall "take from another member of the same a natural mem"ber of his bodie, or the use and benefit thereof, and "thereby disable him to serve the commonweale by his weapons in the time of warre, or by his labor in the "time of peace; and also diminisheth the strength of "his bodie, and weaken him thereby to get his own "lyving, and by that means the commonweale is in a "sort deprived of the use of one of her members.' Wounds which merely disfigured the person without impairing the general strength or the powers of some particular member seem to have been excluded by all the common law definitions of mayhem; though made the subject of several stringent enactments. In this country, however, many of the statutes, punishing maims, embrace also wounds, deemed aggravated from the personal disfigurement involved, merely. Thus, our own statute (2 Rev. Stat., 664, § 27), without defining the term "mayhem," imposes one and the same punishment on any person who "shall cut out or disable the tongue; put out an eye; slit the lip or nose; cut off or disable any limb,” &c. So the Revised Statutes of Ohio embrace biting the nose, lip or ear. (1 Rev. Stat. of Ohio, 1860, 411, § 23.) The act of congress of 1790 (1 U. S. Stat. at L., 115, § 13), specifies cutting off an ear. So in Illinois, mayhem is expressly defined to consist in unlawfully depriving a human being of a member of his or her body, or disfiguring or rendering it useless. (1 Purple's Stat. of Ill., 365, § 47.) And there are many other statutes substantially like these, in this respect. (Compare 2 Gavin & H. Stat. of Ind., 1862, 440, 12; 2 Rev. Stat. of Miss., 565, § 34; Pen. Code of La., 141, art. 235; 1 Md. Code, 235, § 121; Rev. Stat. of Maine, 667, § 15; Rev. Code, D. C., 517, § 20; Code of Iowa, 350, § 2577; Code of Ala., 563, § 3105; Stat. of Conn., Comp. of 1854, 307, § 12; 1 Rev. Stat. of Ky., 382, art. 6, § 1.) Following the example of these enactments, the Commissioners have extended the penalty of maiming to embrace wounding which either disables or disfigures. S264. Every person who, with design to disable himself from performing any legal duty, existing formance of or anticipated, inflicts upon himself any injury whereby he is so disabled, is guilty of maiming. a duty. In countries burdened with a severe military conscription, self inflicted injuries, to escape the service, are not uncommon. "It is curious to observe," says Foderé (Tr. de Med. Leg., vol. 2, p. 480, cited in 1 Beck's Med. Jur., 37) "how many young men have, during the last twenty years, * * "Ulcers," says Beck (1 Med. Jur., 50), "are frequently induced by the use of acetate of copper quicklime, &c. * Frauds of this description are frequently attempted in hospitals or to avoid the performance of labor of every kind." And he narrates several striking instances of this species of imposture. The military law of France declares any individual drafted to perform military duty who incapacitates himself, either temporarily or permanently, punishable by imprisonment. The extent to which practices of this sort have been carried in modern Egypt is very remarkable. Mr. Edward Lane, writing in 1834, says: "There is seldom to be found, in any of the villages, an ablebodied youth or young man who has not had one or more of his teeth broken out (that he may not be able to bite a cartridge), or a finger cut off, or an eye pulled out or blinded, to prevent his being taken for a recruit. Old women and others make a regular trade of going about from village to village to perform these operations upon the boys, and the parents themselves are sometimes the operators." (1 Lane's Mod. Egyptians, 3d ed., 294.) St. John, writing in 1851 (Village Life in Egypt), and Warburton (The Crescent and the Cross), give similar accounts. During the present war similar means are known to have been resorted to, in some instances, to avoid mili tary service; and this suggests the insertion of the section. one's self to obtain alms. $265. Every person who inflicts upon himself any Maiming injury such as if inflicted upon another would constitute maiming, with intent to avail himself of such injury, to excite sympathy, or to obtain alms, or any charitable relief, is guilty of maiming. $266. To constitute maiming it is immaterial by what means or instrument, or in what manner, the injury was inflicted. U. S. v. Scroggins, 1 Hempst., 478. $267. To constitute maiming by disfigurement the injury must be such as is calculated, after healing, to attract observation. A disfigurement which can only What injuconstitute maiming. ry may What dismay constiing. figurement tute maim. Designing to maim, &c. Premedi. tated design. Subsequent recovery of injured person, when a defense. Punishment. he discovered by close inspection does not constitute maiming. State v. Girkin, 1 Ired. L., 121. $268. A design to injure, disfigure or disable, is inferred from the fact of inflicting an injury which is calculated to disfigure or disable, unless the circumstances raise a reasonable doubt whether such design existed. State v. Girkin, 1 Ired. L., 121. State v. Crawford, 2 Dev., 425. S269. A premeditated design to injure, disfigure or disable, sufficient to constitute maiming, may be formed instantly before inflicting the wound. The Revised Statutes required "a premeditated design evinced, lying in wait for the purpose, or in any other manner;" or an intent to kill or commit a felony. (2 Rev. Stat., 664, § 27.) As, however, the words "premeditated design," as used in the Revised Statutes, relative to murder. have been construed to embrace a design formed at the instant of the act, the Commissioners suggest the employment of them in the same sense in reference to maiming. That rule has been laid down in State v. Simmons, Ala., 497. S270. Where it appears, upon a trial for maiming another person, that the person injured has, before the time of trial, so far recovered from the wound that he is no longer by it disfigured in personal appearance, or disabled in any member or organ of his body, or affected in physical vigor, no conviction for maiming shall be had; but the accused may be convicted of assault and battery, with or without a special intent, according to the proof. To constitute maiming the injury should be permanent. Where, however, the prosecution have proved a wound inflicted by the prisoner, and effective at the time to disable the person injured, it is for the prisoner to show that the injury was only temporary. (Baker v. State, 4 Ark., 56, 64.) S 271. Every person guilty of maiming is punishable by imprisonment in a state prison not exceeding seven years, or by imprisonment in a county jail not exceeding one year, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. The punishment prescribed by the Revised Statutes, for maiming, is imprisonment in a state prison, not exceeding seven years. (2 Rev. Stat., 664, § 27.) As the Commissioners have extended their definition to embrace self-inflicted injuries, they have provided for a broader range of judicial discretion, in respect to the punishment. CHAPTER IV. KIDNAPPING. SECTION 272. Kidnapping defined. 273. Effect of consent of injured person. 274. Selling services of person of color. 275. Removing from this state persons held to service in another state. 276. Penalty imposed on judicial officers. defined. $272. Every person who, without lawful authority, Kidnapping forcibly seizes and confines another, or inveigles or kidnaps another, with intent, either: 1. To cause such other person to be secretly confined or imprisoned in this state against his will; or, 2. To cause such other person to be sent out of this state against his will; or, 3. To cause such person to be sold as a slave, or in any way held to service against his will, is punishable by imprisonment in a state prison not exceeding ten years. 2 Rev. Stat., 664, § 28. The above section embraces substantially the provisions of 2 Rev. Stat., 664, § 30, and is somewhat broader than the term "kidnapping," in the caption of the chapter, would imply. That term is, by earlier writers, used to denote the abduction of children only; and this seems its etymological meaning. (See Philip's World of Words; Webst. Dict.; Johns. Dict.) Many accurate authorities employ it without respect to the age of the subject; but confine it to an abduction committed with intent to export the person injured out from his own home, state or country, to another. |