11. Specially of the Indictment on Statutes. § 845. Elsewhere considered. The statutory offence, with the indictment therefor, is more particularly for “Statutory Crimes.” 1 Follow Statute. The indictment, in these cases as in all others upon a statute, must mingle with the common-law forms of allegation the averments required by the particular enactment on which it is drawn, according to explanations given in the first volume. Thus, – § 846. Form of Indictment. (Wounding). — If a statute inflicts the penalty for this offence on one who “shall wilfully and maliciously, by any means whatever, kill, maim, or wound any animal of another which it is made larceny to steal,” the indictment for wounding may charge, that, at a time and place, the defendant one sorrel mare, of the value of, &c., of the goods of, &c., “ did wilfully and maliciously wound.” So it has been held,3 and probably not contrary to just principle ; 4 but the question whether the instrument, the manner, or the extent of the wounding should not be given, to further identify the transaction, is not absolutely clear.) 1 Stat. Crimes, $ 431-449. Kirton, 3 Wils. 318; The State v. Batson, 2 Vol. I. § 593–612; The State v. 31 Misso. 313; Bates v. The State, 31 Slocum, 8 Blackf. 315 ; Taylor v. The Ind. 72; The State v. Hill, 79 N. C. 656; State, 6 Humph. 285 ; The State v. Rembert . The State, 56 Missis. 280; Clifton, 24 Misso. 376; Commonwealth The State v. Parker, 81 N. C. 548. v. Butcher, 4 Grat. 544; Commonwealth 8 Lemon v. The State, 19 Ark. 171, v. Dougherty, 6 Gray, 349 ; Common- See Thompson v. The State, 51 Missis. wealth v. Bean, 11 Cush. 414; Glines v. 353; Swartzbaugh v. People, 85 III. 457. Smith, 48 N. H. 259; Maskill v. The 4 Stat. Crimes, § 1113. State, 8 Blackf. 299; The State v. Pen- 5 For further forms, see 3 Chit. Crim. nington, 3 Head, 119; The State v. Pine, Law, 1132 et seq.; Rex v. Chapple, Russ. 30 Texas, 399; Rex v. Ashton, 2 B. & & Ry. 77; The State v. Burgess, 40 Ad. 750; Reg. v. Morris, 9 Car. & P. 89; Maine, 592; Commonwealth v. Williams, The State v. Staton, 66 N. C. 640; The 110 Mass. 401; Commonwealth v. Bean, State v. Malloy, 5 Vroom, 410; The State 11 Cush. 414; The State v. Brant, 14 v. Hussey, 60 Maine, 410; Birdg r. The Iowa, 180; Oviatt v. The State, 19 Ohiu State, 31 Ind. 88; Rex v. Mogg, 4 Car. & State, 573; Reg. v. Pembliton, Law Rep. P. 364; Rex v. Chalkley, Russ. & Ry. 2 C. C. 119; Commonwealth v. Waldeii, 258; The State v. Allen, 72 N. C. 114; 3 Cush. 558; Commonwealth v. Soule, The State v. Arnold, 39 Texas, 74; The 2 Met. 21 ; Commonwealth v. Cox, 7 State v. Simpson, 73 N. C. 269; Com- Allen, 577 ; Commonwealth v. Sowle, 9 monwealth v. Turner, 8 Bush, 1; The Gray, 304 ; Reg. v. Whiteman, Dears. State v. Stalls, 37 Texas, 440; Allan v. 353, 25 Eng. L. & Eq. 590; The State v. Kirton, 2 W. Bl. 842 ; 8. c. nom. Allen r. Staton, 66 N. C. 640; The State v. III. The Evidence. $ 847. Injured Person as Witness. - The person to whose injury the mischief was done, may be a witness against the doer.1 § 818. Prima-facie Case Prove All. All the essential allegations of the indictment, constituting a prima-facie case against the defendant, must be proved by the prosecuting power. The proof need not be by witnesses testifying directly to the facts, but it may be equally by presumptions from other facts in evidence. Thus, Malice — may be inferred from the acts of mischief, wilfully done. But this inference is not inevitable; as, for example, it " may not arise where the defendant acted on a license from a person supposed to represent the owner. And where, as in most cases, the intent to injure the owner is an element in the offence, there should be something in the evidence pointing the malice toward him; it does not absolutely arise as of course out of the mere unlawful act of injury. But Absence of License. It is not incumbent on the government to prove such matter of defence as that the defendant did not act under license from the owner. Yet the statute may be in such terms as to render the absence of a license a part of the government's necessary prima-facie case, 9 — but we are here approach ing a question on which the authorities are not quite uniform. Other Instances — of the like offending may in some circumPainter, 70 N. C. 70; Commonwealth v. 2 Belverman v. The State, 16 Texas, Falvey, 108 Mass. 304; McKinney 1. Peo. 130. ple, 32 Mich. 284; The State v. Williams, 8 Wallace v. The State, 30 Texas, 758; 21 Ind. 206. And see The State v. Col. Commonwealth v. Sullivan, 107 Mass. lins, 19 Ark. 587; The State v. Keogh, 13 218. See The State v. McDermott, 36 La. An. 243; The State v. Cantrell, 2 Iowa, 107; Brown v. The State, 26 Ohio Hill, S. C. 389 ; Turnipseed v. The State, State, 176. 6 Ala. 661. Where the statute made it • Rex v. Crutchley, 5 Car. & P. 133. indictable “maliciously, &c., any horse, 5 The State v. Underwood, 37 Misso. cattle, or other domestic beast of another," 225. Res Gesta. – The defendant's an indictment for wounding a hog, without declarations, after committing the act, averring that it was a domestic beast,” may in some circumstances be admissible was held, on the English authorities, to be in his favor on the question of malice. good. The State v. Enslow, 10 lowa, 115, The State v. Graham, 46 Misso. 490. 116. 6 The State v. Underwood, supra; I Vol. I. $ 1138; United States v. Lossen v. The State, 62 Ind. 437. Johns, 4 Dall. 412; The State v. Pike, 33 7 The State v. Whittier, 21 Maine, Maine, 361; Blackstone v. The State, 15 341 ; Welsh v. The State, 11 Texas, 368. Ala. 415. 8 Rex v. Hazy, 2 Car. & P. 458. stances be shown against the defendant in explanation of his intent; as, on an indictment for malicious shooting, where it was uncertain whether a proven instance was from accident or design, another evidently intended was deemed competent as inferring design in this one. § $ 849. Proving Injury as laid -(Variance). - Where the indictment was for killing a cow, contrary to 7 & 8 Geo. 4, c. 30, $ 16, the words of which are “shall unlawfully and maliciously kill,” &c. the allegation of killing was held to be sustained by proof that the defendant set fire to a cow-house in which the cow was, whereby the animal was burned to death. So the averment that the defendant caused another's hens to eat poison is proved by showing that he exposed the poison, intending they should find and eat it, which they did.3 $ 850. Proof of Ownership. — The ownership, when necessarily alleged, 4 must, as in larceny," be proved. Parol evidence, even where the injury is to real estate, is adequate. And, Corporation. — When the ownership is laid in a corporation, the proof may be the same as when in an individual. 1 Rex v. Voke, Russ. & Ry. 531. One Laughlin, 105 Mass. 460; Commonwealth was on trial for wilfully setting fire to a v. Soule, 2 Met. 21. rick by firing a gun close to it, on a day * Ante, $ 843 named; and the fact that the rick was 5 Ante, $ 752. on fire the day before and the defendant 6 The State v. Weeks, 30 Maine, 182 ; was by it with a gun, was admitted, as Nutt v. The State, 19 Texas, 310; The tending to overcome any suggestion of State v. Hill, 79 N. C. 656. And see Peoaccident the instance in controversy. ple v. Horr, 7 Barb. 9; Belverman v. The Reg. v. Dossett, 2 Car. & K. 306 ; 8. C. State, 16 Texas, 130. pom. Reg. v. Dosset, 2 Cox C. C. 243. 7 The State v. Jaynes, 78 N. C. 504. 2 Rex v. Haughton, 5 Cars & P. 559. 8 Lowe v. The State, 46 Ind. 305. See, as to the indictment, Taylor v. The Other Questions. — For other questions State, 6 Humph. 285. of evidence, see Delano v. The State, 29 8 Commonwealth v. Falvey, 108 Mass. Ind. 211; The State v. Clark, 5 Dutcher, 304. And see Commonwealth v. Mc- 96. For MALICIOUS WOUNDING, see Stat. Crimes. MANSLAUGHTER, see Homicide, the chapter beginning ante, $ 496. 398 CHAPTER XLVII. MAYHEM AND STATUTORY MAIMS.1 § 850 a. Introduction. $ 850 a. How the Chapter divided. We shall consider, I. The Common-law Proceeding; II. The Proceeding upon Statutes. I. The Common-law Proceeding. § 851. Indictment. — By the ancient common law of England, as it stood before the enactment of any statute of mayhem, there was pretty plainly an offence of mayhem, distinguishable from some misdemeanors often known by the like. name, which was a well-defined felony. Of course, there were forms of indictment for it. But the statutes began to appear as far back as the reign of Henry IV.; and, where there has been a case of mayhem within the terms of a statute, the indictment has been upon it. Possibly some of the old common-law forms may be found in our ancient books, but the author does not remember to have met with such. And should he here suggest a form, it would be 1 For the law of these offences, see made against a woman who has deprived Crin). Law, II. $ 1001 et seq. a man of his members, she shall have 2 Criin. Law, II. $ 1001, 1008. judgment to lose a hand, being the mem8 Moreover, I judge that the early ber wherewith she committed the of. prosecutions for mayhem were seldom fence." This "eye-for-an-eye" sort of by indictment; appeal being, as Reeves punishment, adapted to the tastes of a tells us, "the usual mode.” 2 Reeves rude age, was not inflicted where the proHist. Eng. Law, 33–35. In this proceed- ceeding was by indictment. 1 Britton, ing, the appellor was generally excused by Nichols, 123. Of course, therefore, from fighting by reason of the disabling the appeal must have been the favored wounds of which he complained, so that suit. As to what appears to have been the trial was commonly by jury. Ib. 34. a somewhat different form of the appeal And the judgment was, that the appellee of mayhem, wherein the consequences “lose the like member as he has destroyed were less severe, see Crim. Law, IL of the plaintiff ; and, if the plaint be $ 1001, note. 66 without authority, nor probably would it ever be required in practice. Still some knowledge of the common-law indictment is desirable as a help to the procedure under our statutes. Thus, § 852. “Feloniously” “ Maim." These two words were essential; the expression in Latin being, felonice mayhemavit. And § 853. Manner of Hurt, &c. The indictment was required, as in murder, " to set forth,” says East, “ particularly in what manner the hurt was given, and the consequences following it ; concluding, that so the defendant feloniously maimed, &c., but the omission of the former is not helped by such general conclusion."2 Moreover, § 854. Accessories. - This author adds: 6 Lord Hale considers that there are no accessories before in mayhem, for that they are in the same degree as principals; and, if the nature and punishment of the offence at common law, which was in effect only a trespass, be considered, it favors that opinion. Hawkins, however, says, that there may be accessories before ; but that the appellant has his election to proceed against them either as principals or accessories; and here with agrees Staundford, to whom Lord Hale expressly refers. Yet I cannot help suspecting, upon a more accurate inspection of the authorities on which this last opinion is founded, that it is a mistake, proceeding perhaps upon the old notion which prevailed till after the time of Edw. III., that those who were present aiding and abetting, but did not commit the fact, were accessories at the fact. The authorities in support of it are all resolvable into 40 Assize 1, 9, and 41 Assize 16; and there it is said, that the ancient law was that each should be appealed as principal, but that now the appellant may elect to make all principals, or else only the one who struck principal, and the others accessories. But Brook, on one of these passages, says, quod nota : and it seems that the ancient law was the best ; for it is only trespass in effect. And on the other he observes, quod mirum : for in mayhem there are no accessories. And in the time of Henry VI. it appears to have been considered, that, in mayhem, all were principals; as well he who com 1 3 Inst. 118; 2 Hawk. P. C. c. 23, Hawk. P. C. c. 23, § 20, 75, 79; Ib. c. 25, $77. $ 57. 31 East P. C. 402, referring to 2 |