#### THE STATE vs. HORACE GIRKIN.

In an indictment under the 48th section of the 34th chapter of the Revised Statutes, an intent to disfigure is prima facie to he inferred from an act which does in fact disfigure, unless that presumption be repelled by evidence on the part of the accused of a different intent, or at least of the absence of the intent mentioned in the statute.

It is not necessary, in an indictment under this statute, to prove malice aforethought, or a preconceived intention to commit the maim.

To constitute a maim, under this statute, by biting off an ear, it is not necessary that the whole ear should be bitten off — it is sufficient if a part only is taken off, provided enough is taken off to alter and impair the natural personal appearance, and, to ordinary observation, to render the person less comely.

The defendant was indicted at Washington, on the last circuit, before his honor Judge Pearson, for that he “ unlawfully, & on purpose, did bite off the left ear of one James Watson, in the peace of the State then and there being, with intent to disfigure the said James Watson, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.” On the trial, it appeared in evidence, that the defendant and Watson engaged in a fight; and, after Watson had bitten the defendant’s finger, the latter bit off a piece of Watson’s ear, which, on inspection, appeared to be the segment of a circle about an inch along the rim of the ear, and about one quarter of an inch deep in the gristle; and was about one fifth part of the ear.

The defendant’s counsel insisted, first, that the biting off part of the ear did not come within the statute. Secondly, that it was necessary for the State to prove malice aforethought, or a preconceived intention; and that the act was done with an intent to disfigure.

His Honor instructed the jury that it was not necessary that the whole of the ear should be taken off; it being sufficient if a part was taken off, provided such part was not merely the outside skin, but extended into the gristle,and was so large as to make it perceptible to any one that a part of the ear was gone; and that the part bit off of Watson’s ear, as apparent to the Court by inspection, was large enough to come within the meaning of the statute. He further instruct*122ed the jury that it was not necessary for the State to show aforethought, or a preconceived intention; and that the statute would include a case where it appeared that the biting- off the ear was not conceived until the fight commenced. And further, that if the jury were satisfied that the defendant had bit off the part of the ear alleged, and that he did it on purpose, and not by accident, then the law implied that it was done with an intent to disfigure, upon the ground that a man is presumed to intend to do what he does do, unless the contrary is made to appear; that if they were satisfied that defendant bit off the ear after he got his finger out of Watson’s mouth, with an intention to retaliate or revenge himself, he would be guilty; and his counsel were mistaken in the position assumed by them, that the intent to retaliate rebutted the presumption of an intent to disfigure. The defendant was found guilty, and, after an ineffectual motion for a new trial, appealed.

Allen for the defendant.

The Attorney General for the State.

Ruffin, Chief Justice.

Both parts of the second objection taken for the prisoner, are in opposition to the cases of the State vs. Evans, 1 Hay. Rep. 281, and of the State vs. Crawford, 2 Dev. Rep. 425; which establish that the intent to disfigure is prima facie to be inferred from an act which does in fact disfigure, unless that presumption be repelled by evidence on the part of the accused of a different intent, or, at least, of the absence of the intent mentioned in the statute.

Since those cases, which were decided on the act of 1791, the law has been further altered in a manner which closes up all opening for the other branch of this objection. Under the act of 1791, it was contended, not without some plausibility, that, as to cases' within the second section, the indictment must lay the acts to be of malice aforethought, as well as on purpose. We approve, indeed, of the contrary construction, which was adopted by the Court in those cases. But, still it was a point that counsel could then argue with a serious face, and in a way, to which the Legislature seems to have feared the Courts might, at some time, incautiously yield, un*123less the statute should be rendered more explicit on that point. Hence, ih revising the statutes, the opportunity was taken of placing the question beyond all cavil. In the “ Act concerning Crimes and Punishments,” 1 Rev. Stat. ch. 34, the 13th section relates to certain maims committed “ of malice aforethought;” and then in the 48th section, it is enacted that “ if any person shall, on purpose and unlawfully, but without malice aforethought, bite or cut off an ear,” cfcc. It is thus seen that those words « without malice aforethought,” which were not in the second section of the act of 1791, are,introduced into the revised act of 1837 — doubtless with the view of giving expressly to this latter act the same sense in which the former had been received by judicial construction. In other words, the Legislature approved of the interpretation adopted by the Courts, and meant to incorporate it as a distinct and express enactment of the statute.

Upon the other point made on the trial, this Court also agrees in the opinion given to the jury. The object of the Legislature was to protect individuals from such injuries as disfigure, that is to say, alter and impair the natural personal appearance. Where, therefore, the injury reaches that extent, the case must be within the meaning of the act. Here, such is the case. For; although the ear be not entirely severed from the head, yet, certainly, enough was taken off to attract observation, and, to ordinary observation, to render the person less comely. Ih the opinion of this Court, therej fore, there is no error in the judgment.

Per. Curiam. Judgment to be affirmed.