Kitchens v. State

Jul 11, 1888
Reporters:
,
Before:
Bleckley
Bleckley, Chief Justice.

1. “Mayhem shall consist in unlawfully depriving a person of a member, or disfiguring or rendering it useless.” Code, §4339. “ If any person shall unlawfully, and without sufficient cause’ or provocation, cut out or disable the tongue, put out an eye, slit or bite the nose, ear- or lip, or cut or bitе off the ‍​​​‌‌‌​​‌‌​‌​​‌‌​‌‌​‌‌​‌‌​​​‌​​​‌​​​‌​‌​​​‌​​‌​​‍nose, ear or lip, or castrate, or cut, or bite off, or disable any оther limb or member of another, with intention in so doing to maim or disfigure such person, or shall vоluntarily, maliciously, and of purpose, while fighting or otherwise, do any of these acts, every such person shall be guilty of mayhem.” Id. §4340. Section 4341 prescribes the penálty for cutting out or disabling’ the tongue; section 4342, for putting out an eye; section 4343, for putting out both or thе only eye ; section 4344, for slitting or biting the nose, ear or lip; section 4345, for cutting or biting off thе nose, ear or lip ; section 4-346, for castration. Then section 4347 declares: “A person convicted of wilfully arid maliciously injuring, wounding or disfiguring ‍​​​‌‌‌​​‌‌​‌​​‌‌​‌‌​‌‌​‌‌​​​‌​​​‌​​​‌​‌​​​‌​​‌​​‍the private parts of anothеr, with the intention aforesaid, whilst fighting or otherwise, which injury, wounding or disfiguring do not amount to castration, shall be punished,” etc. The question is, whether the private parts of females are protected against wounding or disfiguring, or whether the protection extends to malеs only. The military or combative importance of the organ injured or destroyed, tо which the old common law had *812special regard, is of no. significance whatever as a constituent of mayhem under our code. Whether capacity for attаck or defence has been lessened by the maiming, is utterly immaterial and irrelevant. Thе code looks not to fighting, to giving and shunning blows, but to maintaining the integrity of the person, the natural completeness and comliness of the human members and organs, and the presеrvation of their functions. It is certain that as to every specific organ or membеr designated by name as the subject of mayhem, both sexes are included; then, why are not both included under the terms, “private parts of another ” ? It is true that the male alonе has the testicles, and only upon him could the statute be violated by castration; but will thаt difference, or any other difference in the private parts of the two sexes, warrant a construction ‍​​​‌‌‌​​‌‌​‌​​‌‌​‌‌​‌‌​‌‌​​​‌​​​‌​​​‌​‌​​​‌​​‌​​‍of these terms, either to the effect that the female has no private parts, or that they are less sacred than those of the male ? Each sex has private parts appropriate to its own functions; this we know аs a matter of fact, and cannot ignore it in exploring legislative intention. It would be simple nonsense for us to hold that in contemplation of law a female has no private parts. And why should we conclude that, haying them, they are less protected by law against being injured, wounded or disfigured than those of the male ? Whether for the sake of utility оr appearance, hers are as much within the letter and spirit of the statute as his. There is no better reason for protecting by penalties the genital organs of a man than those of a woman. We think they are both equally included in the section of the code we are construing.

2. In alleging that the person injured was a female, thе indictment by necessary implication negatives ‍​​​‌‌‌​​‌‌​‌​​‌‌​‌‌​‌‌​‌‌​​​‌​​​‌​​​‌​‌​​​‌​​‌​​‍castration. No injury could be committed upon a woman which would amount to castration.

3. The indictment was not bad beсause the nature and character of the injury were not more ‍​​​‌‌‌​​‌‌​‌​​‌‌​‌‌​‌‌​‌‌​​​‌​​​‌​​​‌​‌​​​‌​​‌​​‍particularly described. An indictment is sufficient which describes the offence in *813the language of the code, or’ so plainly as to be easily understood by the jury. Code, §4626. Here the indictment used the very words of the code in stating the offence, and setting forth the acts constituting it.

What wе have said disposes of the case, and the result is that the court did not err, but decided correctly, in sustaining the indictment and overruling the demurrer.

4. We deny the motion to dismiss the writ of error because the evidence was not brought up. The sole error alleged wаs in overruling the demurrer. The evidence could be of no use in reviewing the judgment disposing of the demurrer, and hence if found in the record here, would be a mere excrescence and encumbrance. The irrelevant, if felt at all, is always in the way. To have to think of it is a needless tax upon attention. It is best for the record to contain no superfluous matter, and if any, the less the better.

Judgment affirmed.