People v. Wright

Fitzgerald, C. The defendant was convicted of the crime of mayhem, and sentenced to imprisonment in the state prison for the term of three years. From the judgment of conviction, and the order denying his motion for a new trial, this appeal is taken.

Section 203 of the Penal Code, upon which the information herein was founded, reads as follows: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.”

The evidence upon which he was convicted is in substance as follows: Defendant, while drinking in a saloon with several others, became involved in a quarrel with one of the party named Crall, who challenged him for a fight, which he declined. Crall then left the saloon, and immediately thereafter defendant “ threw off his overcoat” and walked up to one of the party named Trood, who, it appears, was very drunk, and addressing him in an angry manner, said: “ Any one who says Crane was in this is a damned liar.” Trood responded: “ I said it, and I am not a damned liar.” Defendant then struck at Trood, and they at once engaged in a fight. The [566]prosecuting witness, Fuller, whose relations with the defendant were friendly, but not intimate, and who had taken no part in any of the previous quarrels referred to, was standing near by when the altercation occurred, and when the combatants clenched he stepped in between them, and taking hold of both parties separated them, telling them, in effect, as he did so, to quit fighting. Defendant thereupon, and while Fuller had hold of him, threw his arm around Fuller’s neck, and seizing his ear with his teeth, bit a part of it off.

It is claimed by appellant that the evidence is insufficient to justify the verdict, because there was no proof of premeditation or deliberation. Malice as defined by section 188 of the Penal Code is expressly limited in its application to those cases in which malice aforethought is made an essential element, and is therefore not applicable to the case under consideration, as the definition of the word “ maliciously ” as herein employed is to be found in subdivision 4 of section 7 of the Penal Code, and reads as follows: “The words ‘malice’ and ‘maliciously’ import a wish to ... . injure another person, or an intent to do a wrongful act, established either by proof or presumption of-law.”