Opinion
(April Term, 1796.)
Where an outrageous act, as a maim, is proved, the law presumes that it was done with that disposition of mind which the law requires to constitute guilt, until the contrary is shown.
INDICTMENT for assaulting one Joseph Wright Nicholson, and for that the said Evans, on purpose, unlawfully did bite off the right or forefinger of the right hand of him, the said Joseph Wright Nicholson, with intent in so doing the said Joseph Wright Nicholson to maim and disfigure, against the act, etc. The evidence was that Nicholson applied to him at Nash courthouse, about the middle of the afternoon, to borrow some money, which displeased Evans, who said, as he was poor, Nicholson intended to insult him. On the same evening, after dark, two men, Williams and Viverett, were playing at cards, and some dispute arose between them. Nicholson jocosely said to Williams, "Why don't you whip him?" who replied, jocosely also, that he was afraid to attempt it. Nicholson, in the same strain, offered to bet a dollar that he could flog Viverett; whereupon, immediately, Evans stepped forward, saying he would accept the offer, pulled a dollar out of his pocket, and was handing it to one Woodward as stakeholder. Nicholson snatched the dollar and put it in his pocket; Evans demanded it; Nicholson, continuing the joke, said he had no money of his; Evans still demanded the money, and not having it delivered, proceeded to say, "You act like a scoundrel!" Nicholson replied, "You can't make me so." Evans answered, "But I can flog you," and came up to Nicholson in an angry manner. Nicholson said, "I will not fight you myself, but I have a negro fellow shall fight you." This exasperated Evans to a great degree. He came up several times offering to strike, Nicholson continuing each time to say he would take the law of him. At length Evans stepped off a little way, pulled off his clothes, and came up again; upon which Nicholson took hold of his arm to turn him off, and when he was turned, struck him, upon which the blow was returned, a fight ensued, and immediately Evans bit off the finger, as stated in the indictment.
Whenever an act of an outrageous kind is (282) committed, and in order to its being punishable, the law requires a certain disposition of mind to accompany it. The act being once proved to be committed, the law will presume it done with that disposition till the defendant shows the contrary — as in the case of killing, that being proved, the law will presume it was done with malice prepense, till the contrary be shown by the evidence; so here, the law requiring the act of biting off the finger to be done on purpose, unlawfully, and with intent to maim, when the act itself is proved, the law will presume it was done on purpose, and with intent to maim, as it actually was a maim, till the evidence sheweth the contrary — such as that it was done by accident, or done in such a manner as was not likely to be attended with that effect; or that the act done was in pursuance of some office or sentence of the law, as slitting the nose, in the case of a conviction and judgment of forgery, by the proper officer; or that it was done for the necessary self-defense of the party, against some great bodily harm attempted by the person maimed, and that there was no other means of preventing the mischief, or other circumstances of the like kind.
No such circumstances of excuse or justification have appeared on the evidence in the present case. Had Nicholson made the first assault, perhaps it might have justified the other in beating him, but it could not justify a maim. Nicholson's behavior in the present case was surely very improper, but the defendant has carried his chastisement too far. This is a practice that ought to be discouraged, and if a sudden recounter shall be deemed sufficient to excuse the party maiming from the penalties of this branch of the act, it will be of very little avail; for then in every sudden affray the one party may bite off the nose, fingers, etc., of the other, and excuse himself by saying it was done in the heat of passion, upon a sudden affray. And though Nicholson would have no right to complain, had he received a gentle scourging from the defendant, yet the other party being a man, as the evidence is, of very superior bodily powers, there cannot be the least excuse for acting as he has done.
The jury convicted the defendant, and he was fined £ 5, and sentenced to six months imprisonment, according to the act of Assembly.
See S. v. Irwin, ante, 112.
Cited: S. v. Crawford, 13 N.C. 426; S. v. Ormond, 18 N.C. 121; S. v. Skidmore, 87 N.C. 513.