that the prisoner's intent was to fracture the skull or injure the head, and not to kill, and if such intent had been found there was an assault with an attempt to maim, within the statute. Mayhem at common law is defined by Blackstone as violently depriving another of the use of such of his members as may render him less able, in fighting, either to defend himself or to annoy his adversary. 4 Bl. 204.

It was recognized as a felony at a very early period of the common law, and the offender was punished by the loss of the same member of which he had deprived the party maimed-"membrum pro membro." It was treated as an offense against the state, for the reason assigned by Lord Coke (1 Inst. 127): "For the members of every subject are under the safeguard and protection of the law, to the end a man may serve his king and country when occasion shall be offered." The special injuries which constitute mayhem are stated by Hawkins as follows:

"And therefore the cutting off or disabling or weakening a man's hand or finger, a striking out his eye or foretooth, or castrating him, are said to be maims; but the cutting off his ear or nose are not esteemed maims, because they do not weaken, but only disfigure, him." 1 Hawkins' Pleas of the Crown, 107.

And Blackstone treats it as an injury resulting in a permanent disability, and says it is attended with this aggravating circumstance: that thereby the party injured "is forever disabled from making so good a defense against future external injuries as he otherwise might have done." 3 Bl. 131.

An injury to the head or skull is not specified by Hawkins or Blackstone as mayhem; and as the usual consequence of such an injury is either death or temporary disability, it does not seem to be embraced within the definition of that crime as given by these commentators.

In the definition of mayhem by Lord Coke the breaking of the skull is included.

"Mayhem," he says, "signifieth a corporal hurt, whereby a man loseth a member, by reason whereof he is less able to fight, as by putting out his foretooth, breaking his skull, striking off his arm, hand, or finger, cutting off his leg or foot, or whereby he loseth the use of any of his said members." Coke, Litt. 288a.

And Lord Coke refers to the authority of Glanville and Britton in support of this definition:

"Mayhem," says Glanville, "signifies the breaking of any bone or injuring the head by wounding or abrasion. In such case the accused is obliged to purge himself by the ordeal that is, by the hot iron, if he be a freeman; by water, if he be a rustic." Glanville (Blain's Translation) book 14, c. 1, 350. See, also, Britton (Nichols' Tranlation) liv. 1, c. 26, fols. 48b, 49a, 123.

Some recognized instances of mayhem are omitted in Glanville's definition, and it would seem to include any injury to the head, how

ever trivial. But no authority has been cited subsequent to the time of Lord Coke, nor has any come to our notice, for the proposition that a fracture of the skull is mayhem, except that Mr. East, in his Pleas of the Crown (page 393), after giving the general definition of mayhem at common law, and instances in illustration of it, concludes, "or as Lord Coke adds, breaking the skull."

But, whatever acts may have been recognized as mayhems at a remote period of the common law, the crime and the punishment became the subject of statute definition and regulation. Some statutes had been passed upon the subject prior to the reign of Charles II, but the first general and comprehensive one was St. 22 & 23 Car. II, c. 1, entitled "An act to prevent malicious maiming and wounding."

Chitty speaks of it as the most important and extensive ancient statute upon this subject. Criminal Law, vol. 3, p. 785. And Blackstone says that this and the prior statutes "put the crime and punishment of mayhem more out of doubt." 4 Bl. 206.

By this statute it is enacted that any person who "shall on purpose and of malice aforethought, by lying in wait, unlawfully cut out or disable the tongue, put out the eye, slit the nose or lip, or cut off or disable any limb or member of any subject, with intention in so doing to maim or disfigure him in any of the manners aforesaid," shall be guilty of felony without benefit of clergy.

Whatever may have been the law of mayhem in England antecedent to this statute, no case can be found, we think, arising since its enactment, in which an injury to the head, or any act or injury, has been regarded as mayhem, other than the acts and injuries enumerated in this statute.

It has been regarded as defining what before may have been uncertain. And it was held in Rex v. Lea, 1 Leach, 51, where a husband had cut the throat of his wife quite across, that it was not maiming within this statute.

The act of Car. II has been the basis of the legislation of this state on the subject of maiming.

The first act was passed in 1788, and is entitled "An act to prevent malicious wounding and maiming."

This act was followed by the act of 1801, entitled "An act to prevent malicious maiming," which latter act was substantially a re-enactment of the former, except in respect to punishment.

In both statutes the enumeration and description of the injuries. which are made punishable is the same as in the English statute, and no others are included.

The Revised Statutes (2 Rev. St. [1st Ed.] p. 664, pt. 4, c. 1, tit. 2, § 27) declare "that every person, who, from a premeditated design, etc., shall, first, cut out or disable the tongue; or, second, put out an eye; or, third, slit the lip or destroy the nose; or, fourth, cut off or disable any limb or member of another on purpose, upon conviction

thereof, shall be imprisoned in a state prison," etc.-following the enumeration in the previous statutes.2

The statute of Car. II has been followed, also, in the legislation by Congress and of many of the states of the Union. See collection of statutes in Wharton's Criminal Law, title "Mayhem."

We are of opinion that since that statute the crime of mayhem includes those injuries only which are therein enumerated, and that, the section of the Revised Statutes above cited was intended as a statute definition of that crime.

It does not declare, in terms, that the acts therein enumerated constitute maiming; but the section is contained in the article entitled "Of Rape, Maiming, etc.," and the injuries are those which are generally known as maiming, and it includes all the cases which, since the time of Lord Coke, have come within that designation.

In Reg. v. Sullivan, 1 C. & Marsh. 209, the prisoner was indicted under St. 7 Wm. IV & 1 Vict. c. 85, which enacted that any one who shall stab, cut, or wound any person, with intent to maim, disfigure, or disable such person, or to do some other grievous bodily harm, etc., shall be guilty of felony.

It appeared in the evidence that the prisoner with an ax struck the prosecutor on the head with the edge of it, and inflicted a cut upon it.

Parke, B., in charging the jury, said: "There is no proof of an intent to maim or disable, as the blow was aimed at the head of the prosecutor. It would have been otherwise if it had been aimed at the arm, to prevent his being able to use it. The question, therefore, will be whether there was a wounding with intent either to murder the prosecutor or to do him some grievous bodily harm."

This is a direct authority, and the opinion of an eminent judge, in support of the views herein expressed.

It is to be observed, moreover, that the case did not arise under the statute of Charles, which was repealed by St. 9 Geo. IV, c. 31; so that it stood upon the construction of the words "to maim," in the statute of Victoria.

We might here close the consideration of this case; but we are of opinion that the result would not be changed, although it should be held, according to Lord Coke's definition, that breaking of the skull is or might be a maiming.

The refusal of the court to charge that if the prisoner intended to maim, and not to kill, the offense was murder in the second degree, was proper, for the reason that there was no evidence upon which the

2 The present statute provides that "a person who willfully with intent to commit a felony, or to injure, disfigure, or disable, inflicts upon the person of another an injury, which (1) seriously disfigures his person by any mutila. tion thereof; or (2) destroys or disables any member or organ of his body; or (3) seriously diminishes his physical vigor by the injury of any member or organ; is guilty of maiming, and is punishable by imprisonment for a term not exceeding fifteen years. The infliction of the injury is presumptive evidence of the intent." Pen. Code, § 206.

jury could have found that the prisoner intended to fracture the skull of the deceased, as distinguished from an intent to kill him.

If the prisoner acted from premeditation he may have intended to kill the deceased, or simply to do him a bodily injury; but that he intended the particular injury of breaking the skull only cannot be inferred.

If a blow aimed at an arm is by accident deflected from its course and inflicts a mortal wound, in such or similar cases, an intent to maim only might be found by the jury; and if, in this case, death had not resulted, the prisoner might, perhaps (assuming that the fracture of the head was a maiming), have been convicted of an intent to maim. East's Pleas of the Crown, tit. "Mayhem," Vict. I, 400; Rex v. Cooke. 1 St. Tr. 54.

All concur.

Judgment affirmed.

8 Under the statutes in most states an intent to maim is an essential element of mayhem; but it is generally held that this intent will be presumed from the act of maiming, or if the means used were such as would naturally result in maiming. Molette v. State, 49 Ala. 18 (1873); State v. Jones, 70 Iowa, 505, 30 N. W. 750 (1886); State v. Hair, 37 Minn. 351, 34 N. W. 893 (1887); People v. Wright, 93 Cal. 564, 29 Pac. 240 (1892). In other states it is held that no specific intent to maim is necessary, but that it is sufficient if the act were done willfully or maliciously. Davis v. State, 22 Tex. App. 45, 2 S. W. 630 (1886); Terrell v. State, 86 Tenn. 523, 8 S. W. 212 (1888).

CHAPTER IX.

FALSE IMPRISONMENT AND KIDNAPPING. mil to 319

False imprisonment *

is described to be every restraint of

a man's liberty under the custody of another, either in a goal, house, stocks, or in the street, whenever it is done without a proper authority

* and the punishment for the offence is as in the case of other misdemeanors. *

The most aggravated species of false imprisonment is the stealing and carrying away, or secreting of any person, sometimes called kidnapping, which is an offence at common law, punishable by fine, imprisonment and pillory.

1 East, P. C. c. IX.

SMITH v. STATE.

(Supreme Court of Tennessee, 1846. 7 Humph. 43.)

GREEN, J., delivered the opinion of the court.1

The plaintiff in error was indicted for an assault and false imprisonment of Mark M. Rodgers. The court charged the jury "that, to make out the offense as charged, no actual force was necessary, but that a man might be assaulted by being beset by another; and if the opposition to the prosecutor's going forward was such as a prudent man would not risk, then the defendant would, in contemplation of law, be guilty of false imprisonment."

This charge is correct in all its parts, and the facts were fairly left to the jury. A verdict of guilty has been pronounced, and we do not feel authorized to disturb it. The prosecutor and defendant disputed about the ferriage defendant claimed. Smith insisted upon his demand, and said he did not choose to sue every man that crossed at his ferry. Although he did not take hold of the prosecutor, or offer violence to his person, yet his manner may have operated as a moral force to detain the prosecutor.

And this appears the more probable, as after the affair was settled the prosecutor inquired what defendant would have done if he had not. paid the ferriage demanded, to which the defendant replied that "he would have put his carryall and horse back into the boat and taken them across the river again." As this determination existed in his

The opinion only is printed.