160 P. 23 | Nev. | 1916
By the Court,
This is an appeal from a judgment of conviction of the crime of mayhem.
It is contended by appellant that the information does not state facts sufficient to constitute the offense for
The charging part of the information reads as follows:
"That the said defendant, J. F. Enkhouse, did then and there wilfully, unlawfully, and feloniously deprive one J. A. Cavaney, a human being, of a member of his body, and did disable and disfigure said member in the manner following: That the said defendant, at the county of Humboldt, State of Nevada, on the date aforesaid, did then and there wilfully, unlawfully, and feloniously bite off with his teeth a portion of the right ear of the said J. A. Cavaney, then and there being, and thereby disabled and disfigured said ear.”
1. The crime of mayhem is defined and governed by sections 151 to 153, inclusive, of the Crimes and Punishments Act (Rev. Laws, 6416-6418), which read:
"Sec. 151. Mayhem consists of unlawfully depriving a human being of a member of his or her body, or disfiguring or rendering it useless. If any person shall cut out or disable the tongue, put out an eye, slit the nose, ear, or lip, or disable any limb or. member of another, or shall voluntarily, or of purpose, put out an eye or eyes, every such person shall be guilty of mayhem. * * *
"Sec. 152. To constitute mayhem it is immaterial by what means or instrument or in what manner the injury was inflicted.
" Sec. 153. Whenever upon a trial for mayhem it shall appear that the injury inflicted will not result in any permanent disfiguration of appearance, diminution of vigor, or other permanent injury, no conviction for maiming shall be had, but the defendant may be convicted of assault in any degree. ”
The information was not demurred to. We think the objections to the information ought not to be regarded as well taken, at least in the absence of demurrer. The crime of mayhem is defined in section 151, supra, and it
2. It is conceded by counsel for appellant that if the information had charged appellant with unlawfully and maliciously slitting the ear of the said Cavaney, the information would have charged the crime per se, but because it is only charged that the appellant bit off a portion of the right ear, such allegation is not the equivalent of charging a slitting of the ear. While the word " slit” may have a broader definition than the word " bite” (.People v. Demasters, 105 Cal. 669, 39 Pac. 35), the information in question here charges that the appellant did " bite off with his teeth a portion of the right ear * * * and thereby disabled and disfigured said ear.” The information, therefore, charges a completed act, which completed act is equivalent to a slitting of the ear, for, by the provisions of section 152, it is immaterial by what means the injury or disfigurement is effected.
3. There is no conflict in the testimony in so far as it showed that the defendant bit off a portion of the right ear of the said Cavaney during a personal encounter between the two following a dispute over a card game. There is no conflict in the evidence relative to the extent of the injury inflicted. The injured ear was submitted to the personal inspection of the jury. Dr. Wilson, a witness for the state, who attended Cavaney immediately after the injury was inflicted, testified that:
*6 "About a fourth of the cartilage of the ear was off; all of what you call the top of the external ear is off and the posterior part of the ear is off down to about the middle of the outer edge.”
The evidence is conclusive that, by the act of appellant in biting off the portion of the ear described, a permanent injury or disfiguration of the member was effected. The contention that the evidence is insufficient to support the verdict and judgment is therefore without merit.
4. It is contended that the court erred in refusing defendant’s requested instruction which in effect advised the jury that in accordance with the provisions of section 153, supra, the jury could find the defendant guilty of assault. We think the court did not commit error in the refusing of this instruction. The evidence, without conflict and without question, showed that the injury inflicted resulted in a permanent disfiguration of appearance. There was no room for any question as to whether a lesser offense might have been committed. In such cases it is not error to refuse an instruction that a verdict for a lesser offense may be returned. (State v. Johnny, 29 Nev. 203, 223, 87 Pac. 3.)
5. Appellant assigns error in the giving of instruction No. 8, given by the court of its own motion. The portion of the instruction to which exception is taken reads:
" And then if you should further find from the evidence herein beyond a reasonable doubt that such injury to the said ear of said J. A. Cavaney will result in a permanent disfiguration of the appearance of said ear, then you should convict the defendant of the crime of mayhem.”
It is contended that the law is correctly stated in the case of Green v. State, 151 Ala. 14, 44 South. 194, 125 Am. St. Rep. 17, 15 Ann. Cas. 81, as follows:
"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*7 ordinary observation, as distinguished from a wounding which simply mars the member. ”
We may concede the law to be correctly stated in the Alabama case, supra.
The objection to instruction No. 8 goes rather to the question of the extent of the injury necessary to constitute a permanent disfiguration. The instruction states the law correctly. It. may be conceded that it could very properly have gone farther and pointed out specifically what was necessary to constitute a permanent disfiguration. There was, however, no request for further instruction upon this phase of the law of mayhem. Even if it be conceded that the instruction is technically erroneous as not fully advising the jury as to the degree of proof necessary to constitute the offense charged, it would not be regarded as prejudicial error, where the evidence is without conflict as to the extent of the injury, which injury manifestly causes a permanent disfiguration.
6. The contention that the court erred in fixing the minimum sentence of appellant at five years’ imprisonment is without merit. Where the statute prescribes no-minimum sentence, it is within the discretion of the court to fix such minimum at not less than one nor more than five years. (Rev. Laws, 7260, as amended, Stats. 1915, p. 192.)
The judgment is affirmed.
