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[The Statutes on this topic are for brevity omitted, but will be
found in the sixth edition of this work, $ 1157.]
B. – AT COMMON LAW.
$ 1161. THE evidence required in the case of sodomy is the same as in rape, with a few exceptions ; b it being held that to constitute the offence, the act must be in the part where sodomy is usually committed.c The act committed in a child's mouth is not enough. d A party consenting to the act is not sufficient to procure a conviction without confirmation; it being held that such party is an accomplice, upon whose unsupported testimony a conviction would not be sustained. e
Consent in relation to the offence cannot be regarded as given by a child who by reason of infancy is incapable of understanding the nature of the fact. el
Where an adult and a boy of twelve years of age commit an unnatural offence, the adult being the pathic may be convicted. f
The allegation“ had a venereal affair,” is not essential. g
It is said in Texas not to be enough to charge the offence in general terms. The acts constituting the offence should be charged.h
An indictment was held bad in England for uncertainty which charged that the two defendants being persons of wicked and unnatural dispositions, did in an open and a public place unlawfully meet together, with the intent of committing with each other, openly, lewdly, and indecently in that public place, divers nasty, wicked, filthy, lewd, beastly, unnatural and sodomitical practices, and then and there unlawfully, wickedly, openly, lewdly, and indecently did commit with other, in the sight and view of divers of the liege subjects, in the said public place there passing, divers such practices as aforesaid. 2
b 2 Russ. on Crimes, 698.
f R. v. Allen, 1 Den. C. C. 364 ; T. c R. v. Jacobs, R. & R. 331. & M. 55 ; 2 C. & K. 869; 3 Cox C. C.
d Ibid. ; see generally, 1 Hale, 669; 270. 2 Inst. 58, 59; 1 Hawk. P. C. C. 4. g Lambertson v. People, 5 Parker
e 2 Russ. on Crimes, 6th Am. ed. C. C. 200. 698.
h State v. Campbell, 29 Texas, 44. ed See ante, & 1141, note z, and § 1156 b.
[The Statutes are in this edition omitted, but will be found in the sixth edition, $ 1162. See, for Statutory interpretations, U. S. v. Scroggins, 1 Hempstead, 478; Com. v. Langcake, 1 Yeates, 417.]
B. - MAYHEM AT COMMON LAW.C $ 1171. MAYHEM, at common law, says Mr. East, is such a bodily hurt as renders a man less able in fighting to defend himself or annoy his adversary; but if the injury be such as disfigures him only, without diminishing his corporal abilities, it does not fall within the crime of mayhem. Upon this distinction, the cutting off, disabling, or weakening the man's hand, or finger, or striking out an eye, or fore tooth, or castrating him, or, as Lord Coke adds, breaking his skull, are said to be maims; but the cutting off his ear or nose are not such at common law. But in order to found an indictment or appeal of mayhem, the act must be done maliciously, though it matters not how sudden the occasion.d
§ 1172. Where maiming is proved to have been done, the c For indictments in mayhem, see off an ear, under the statute of Wh. Prec. as follows:
Alabama. (192) Indictment on Coventry Act, (196) Biting off an ear, under Rev.
22 and 23 Car. 2, c. 1, for felony by Stat. N. C. 34, c. 34. slitting a nose, and against the aider (197) Maliciously breaking prosecuand abettor.
tor's arm with intent to maim him, (193) Mayhem by slitting the nose, under the Alabama statute.
under the Rev. Stat. Massachusetts, d State v. Danforth, 3 Conn. 112 ; ch. 125, $ 10.
1 East P. C. 393; Co. Litt. 126, 288; (194) Mayhem by cutting out one of 3 Inst. 62, 118; Staundf. 38 b; 1
the testicles, under the Pennsylvania Hawk. c. 44, sect. 1, 2 ; 2 Hawk. c. statute.
23, s. 16; 3 Blac. Com. 121; 4 Blac. (195) Against principal in first and Com. 205. second degree for mayhem, in biting
law will presume it to have been done on purpose, and with an intent to maim, until the contrary appears from evidence; and no sudden rencontre shall be deemed sufficient to excuse the party maiming, unless it be done in necessary self-defence against some great bodily harm attempted by the person maimed, and where there are no other means of preventing it; or under circumstances of like kind. e All mayhems in England are felony, because anciently the offender had judgment of the loss of the same member, &c., which he had occasioned to the sufferer ; but now the only judgment which remains at common law is of fine and imprisonment; from whence the offence seems to have been considered more in the nature of an aggravated trespass. Lord Coke accordingly classes it as an offence “ under felonies deserving death, and above all other inferior offences.” s
§ 1173. To constitute a mayhem, under the North Carolina statute, by biting off an ear, it is not necessary that the whole ear should be bitten off. It is sufficient if a part only is taken off provided enough is taken off to alter and impair the natural personal appearance, and, to ordinary observation, to render the person less comely.g In an indictment for cutting off an ear in that state, it need not be alleged whether it was the right or the left ear. h In an indictment under the same statute, an intent to disfigure is prima facie to be inferred from an act which does in fact disfigure, unless that presumption be repelled by evidence on the part of the accused of a different intent, or at least of the absence of the intent mentioned in the statute. ¿ It is not necessary in such case to prove malice aforethought, or a preconceived intention to commit the maim.j
$ 1174. The putting out an eye is a mayhem at common law, k and an indictment under the 55th section of the Tennessee penal code for putting out an eye, must aver that the party was thereby 66 maimed.” 1
The biting off a small portion of the ear, which does not disfigure the person, and could only be discovered on close inspection or examination, when attention is directed to it, is not mayhem under the statute of Alabama. m
i State v. Girkin, 1 Iredell, 121.
e State v. Evans, 1 Hayw. 281.
f Co. Litt. 127; 1 Hawk. c. 44, s. 3; 2 Hawk. c. 23, s. 18; 4 Blac. Com. 205, 206.
g State v. Girkin, 1 Iredell, 121. h State v. Green, 7 Iredell, 39.
k Chick v. State, 7 Humph. 161 ; Com. v. Reed, 3 Amer. Law Jour. 140.
1 Chick v. State, 7 Humph. 161.
§ 1175. The technical offence of mayhem has never, in Massachusetts, been considered a felony, either by statute or at common law.o The words “felonious assaulter,” in the statute, do not make it felony. p
In Georgia, mayhem is said not to be felony at common law, except when by castration. q
In Pennsylvania, the practice is to charge it as a felony.r m State v. Abram, 10 Ala. 928. q Adams v. Barratt, 5 Georgia, o Com. v. Newell, 7 Mass. 244. 404. p Ibid. ; State v. Danforth, 3 Conn. r Com. v. Reed, 3 Amer. Law Jour. 112.
140 ; Whar. Prec. 162.