#### State v. Evans.

Where an outrageous act, as a maim, is proved,the law presumes that it was done with that disposition of mind, which the law requires to constitute guilt, until the. contrary is shewn.

Indictment fop assaulting one Joseph Wright Nicholson ; ami for that the said Evans, on purpose, unlawfully did bite off the right or forefinger of the right hand of him, the said Joseph Wright Nicholson, with intent in so doing the said Joseph Wright Nicholson to maim and disfigure, against the act, The evidence was, that Nicholson applied to him at Nash Court-House, about the middle of the afternoon, to borrow some money ; which displeased Evans, who said, as he was poor, Nicholson int ended to insult him. On the same evening after dark, two men, Williams and Viverett, were playing at cards, and some dispute arose between them. Nicholson jocosely said to Williams. why don’t you whip him ; who replied jocosely also, that he was afraid to attempt it — - Nicholson, in the .same strain, offered to beta dollar that he could flog Viverett; whereupon, immediately. Evans stepped forward, saying, he would accept the offer, pulled a dollar om of his pocket, and was banding it to one Woodward as a stake-holder. Nicholson -snatched the dollar, and put it in his pocket Evans demanded it— Nicholson, continuing the joke, said he had no money of his — Evans still demanded the money, and not basing it delivered, proceeded to say, you act like a scoundrel.— Nicholson replied, you can’t make me so. Evans answered but I can floe you. and came up to Nicholson in an angry manner. Nicholson said, Í will not fight you myself, but I have a negro fellow shall fight you. This exasperated Evans to a great degree. He came up several times offering to strike Nicholson continuing each time to say he would take the law of him. At length Evans stepped off a little way, pidled offliis clothes, and «ante up again ; upon which Nicholson took hold of his arm to turn him off, and when lie was turned, struck him: tapón which the blow was returned, a fight ensued, and immediately Evans bit off the finger, as stated in the indictment.

Per curiam

Whenever an act of an outrageous kind is committed, and in order to its being punishable, the law requires a certain disposition of mind to accompaily *326,ít. The act being once proved 10 be committed, the law will presume it done with ditvt disposition, till »b»> Defert-s dant shews the contrary — as in the case of killing, teat being proved, the law wii! presume it was done with malice, prepense, till the. contrary he shewn by the evidence ; so here, tin law requiring the act of biting off the finger to be done on purpose, unlawfully, and with intent to matin, when the act itself is proved, the law will presume it. was done on purpose, and with intent to maim, as it actually was a maim, till the ev¡deuce.shew-ed! the contra"}' — such as that, it was done by accident, or done in such a manner as \yas rot likely to he attended will» that effect; or that t he act done was in'pursuance of some office or sentence of the law, as slitting the nose, in the case of a conviction and judgment of forgery, by the proper officer ; or that it was done for the necessary self-defence of the party, against, some great bodily haem attempted by the person maimed, and that there was no other me., ns of proven ting the mischief, or other circumstances of the like kind. So such circumstances of excuse or justification have appeared or the evidence ¡u ¡he present case. Had Nicholson made ¡he first assaull, perhaps it might have-justified íite other in beating him, but it c.'-uld not justify t> maim. Nicholson’s behaviour in the present ease was sorely very improper, but the Defendant has carried his chastisement too far. This is a practice that ought <o be disrouraged, and if a sudden rencounter shall be d>cmed soffit iem !o excuse the party maiming, from the penalties of this branch of ¡he. act, it will he of very little avail ; for then in every sudden affray, the one party may bite off the nose, fingers, &c. of the other, and excuse hims< f by saying it was done" in the heat of passion, upon a sudden affray. And though Nicholson would have no right to complain, had he received a gentle scourging from the Defendant; yet the other party being a man, as the evidence is, of very superior bodily powers, (here cannot be the least excuse for acting as he lias done.

The jury convicted the Defendant, and he w:.s fi>cd five, pounds, and sentenced to six months imprisonment/ according to the act ot Assembly.

Note. — Vide State v. Irwin, ante 112.