Green v. State, 44 So. 194

Green v. State

44 So. 194 | Ala. | 1907

McCLELLAN, J.

Mayhem, as defined, in the presently pertinent aspect, by section 5095 of the Code, is committed when any person “unlawfully, maliciously and intentionally cuts, bites, or strikes olf an ear” of another person. This statute has been partially construed in Molette’s Case, 49 Ala. 18. The essential ingredients of the offense, the necessary disfigurement of the person maimed being given, are that the act was done without authority of law and with evil intent and by design. In this instance the disfigurement, necessary to justify conviction, must have been such as would afford to the casual observer of the person injured, and not such as requires a close or unusual inspection to detect. In other words, the injury to the ear must be such as disfigures to ordinary observation, as' distinguished from a wounding which simply mars the member. — Abram’s Case, 10 Ala. 928. Whether the injury is of the neces*17sary character must ordinarily be determined by the jury.

We can conceive of no reason why self-defense may not be available in justification of the act, providing, of course, the resistance is proportionate to the injury offered. — State v. Crawford, 13 N. C. 425; State v. Evans 2 N. C. 281; State v. Skidmore, 87 N. C. 509; 20 Am. & Eng. Ency. Law, p. 250, and notes. What is spoken of in Abram’s Case, 10 Ala. 932, as the instinct of self-defense, is, of course, entirely distinct from the doctrine above stated. That instinct cannot mitigate or justify the offense, whatever the circumstances attending.

Where there is allowed by the court, over objection, an improper question to a witness, no prejudicial error is committed if the answer is favorable to the objecting party. — Sou. Ry. Co. v. Crowder, 135 Ala. 417, 33 South. 335. Many of the exceptions noted in this record ivere thus rendered innocuous as reversible errors, if, indeed, they were primarily erroneous.

The questions propounded relative to the character and extent of the injuries received by McCalmon in the altercation, as Avell as the treatment and duration by the physician and his professional opinion thereon, were unobjectionable.

There Avas, so far as Ave can discern from this record, no legal testimony tending to shOAV a preconceived plan or purpose to harm McCalmon. The question and its answer, both seasonably sought to be kept from the jury, by which it Avas shoAvn that some one, not remembered by the witness, had informed him that an attack Avas to be made by the defendant and others on McCalmon, the witness, was pure hearsay, and patently inadmissible. The alloAvance of the question, as also the overruling of the motion to exclude, must Avork a reversal of the judgment.

*18Charge's 2, 13, and. 31 were properly refused. Those numbered 2 and 13 sought the benefit of self-defense, and each pretermitted entirely necessary elements thereof. While “maliciously,” as used in this statute, and “malice aforethought,” a term used in charge 31, are in some respects synonymous, yet they are not always so, and for that reason, if not others, the charge was bad.

For the error noted, and we discover no other, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.