#### State v. Irwin.

Malice aforethought is ‘express or to be implied train circumstances; intent to maim or disfigure, may likewise be implied from circumstances ; and it is not necessary to prove antecedent .grudges, threatnings or an express design. Confessions before a Justice of the Peace, may be admitted in evidence, although not reduced into writing.

He was indicted, for that he, on sucii a day and place, made an assuit on one Joshua Coffee, and of his malice aforethought, struck and put out his right eye with an intent to maim and disfigure, against the form of the act of'Assembly, which is in these words, to-vnt: “If any person or persons shall of malice aforethought, unlawfully cut out or disable the tongue, or put out the eye, of any person, with intent to maim or disfigure; the person or persons so offending, their counsellors, abetters and aiders, knowing of and privy to the offence, shall for the first offence,” &c. and then directs the punishment, making the second offence felony without benefit of clergy. The second clause is in these words : “ If any person or persons shall on purpose unlawfully cut or slit the nose, bite or cut off a nose or lip, bite or cut off an ear, or disable any limb or member of any other person, with intent to murder, or to maim, or disfigure such person; in every such case the person or persons so offending, being thereof lawfully convicted, shall be imprisoned for the space of six months, and fined at the discretion of the Court before whom such offence shall be tried.” 1791, c. 8, see. *1311 and &. Et per curiam, malice aforethought is express or implied, ami it may be implied from the.circumstance of the Defendant’s striking with such an instrument as is likely to produce great bodily harm to the person stricken, and from its being done, without sufficient provocation.'— Also tiie intention to maim or disfigure, may be implied from circumstances; and it is by no means necessary to prove antecedent grudges or threatnings, or an express design. — In this case upon the trial, the Attorney-General called upon a witness to sware to a confession made before him by the Defendant, when he came before, him to be examined : and Mr. Moore, of counsel for the Defendant, insisted that such confession could not be given in evidence; he said a confession before a’private individual may be given in evidence, but when it is made before a Justice of the Peace, as in the present .case, it is his duty whether it bo for felony, or a misdemeanor, to take the examination in writing; and that this is intended, as well for the benefit of the prisoner, as the State, to t he end that his confession being reduced to writing, when it is made by an officer entrusted by the public in whom confidence is reposed, may not afterwards be liable to misrepresentation in the giving parol' testimony of itj and he cited Leach, the last case, and the case of tlie King v. Jacobs in the same book. E contra, it was insisted for the State, that the practice both .here and in England .a long time previous to these cited cases, hath been not to admit parol testimony where the examinations of the prisoner were reduced into writing; for then according to the rule of evidence in all cases, that would not be the best testimony the party had it in his power to produce; and it was an absurdity to say, as the cases, cited did, that a confession made in the presence of an individual not engaged by duty to be attentive, might be given in evidence, and yet the same confession made before a Justice, whose business if was ip examine carefully, shall not.

Et

per Curiam

The practice in this country always hath been to receive such evidence, and we see uo good, reason to break through it. There is certainly an impropriety in saying, that evidence may be received of a confession made before a private man, and that the same confession made before a Justice shall not, because he hath omitted to perform his duty, This Vrould put *132it in the power of a Justice to make the confession, evidence or not, at his election; and isa power the law never meant to give him — the act is only directory, and if the Justice should not do his duty in the obeying it, that shall not be of so much prejudice to the State that the evidence shall be lost by it. — So the evidence was admitted. — See 3. Co. Inst. 62. where malice prepense in cutting out the tongue, or putting out an eye, is thus defined — a voluntarily and of set purpose, though it be done upon a sudden occasion } for if it he voluntary, the law implicit) malice.

Note. — Vide State v. Evans, post 281. That confessions before a Magistrate not reduced to writing are admissible, see Hall’s case, 1 McNally, 40. But to authorise the admission of such confessions, it snust be clearly proved that they were never reduced to writing. 1 McNally. 49, 50.—1 Leach 347.