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CASES

IN THE

SUPREME COURT

OF

ALABAMA.

GREEN v. STATE.

[151 Ala. 14, 44 South. 194.] MAYHEM—What Constitutes.—To constitute mayhem, an injury to an ear must be such as disfigures to ordinary observation, as distinguished from a wounding which simply mars the member. (p. 18.)

MAYHEM.-Self-defense is available in justification of the crime of mayhem, providing the resistance is proportionate to the injury offered. (p. 18.)

TRIAL EXAMINATION of Witnesses.-If an improper question to a witness is allowed by the court over objection, there is no prejudicial error if the answer is favorable to the objecting party. (p. 19.)

MAYHEM-Self-defense-Faulty Instructions.—Instructions as. serting that if the accused and the person injured were engaged in mortal strife, and the person injured was armed with a deadly weapon and the accused was unarmed, and that while so engaged the accused bit off only a small portion of such injured person's ear, the accused must be acquitted is erroneous as not including all the elements of self-defense. (p. 19.)

MAYHEM-Self-defense.-Instructions that if the accused cut, bit, struck off, or mutilated the ear of the injured person while fighting with him'in self-defense, and that, if the accused was free from fault in bringing on the difficulty, he is not guilty, is erroneous as omitting certain elements of self-defense. (p. 19.)

CRIMINAL LAW-Malice.-An instruction that before the accused can be convicted the jury must be satisfied beyond a reasonable doubt that the act was done unlawfully, intentionally, and with malice aforethought, is erroneous in the use of the words "malice aforethought," as they are not necessarily synonymous with the word “maliciously' as used in the statute. (p. 19.)

Indictment for mayhem charging that the accused unlawfully, maliciously and intentionally cut off, bit or struck off the ear of one McCalmon. The accused and the injured person engaged in a fight when no one was present. The accused knocked the injured person down and was on top of

Am. St. Rep., Vol. 125-2 (17)

him, beating him, when certain persons came along and took him off, and as they were taking him off, he bit off a portion of the injured person's ear. The court refused the following charges requested by the accused:

(2) If the jury find from the evidence that defendant and McCalmon were engaged in mortal strife, and that said McCalmon was armed with a deadly weapon, and that the defendant was unarmed, and while so engaged in said strife the defendant bit off only a small portion of said McCalmon's ear, they must acquit the defendant. . . . . (13) If the jury believe from the evidence that the defendant cut, bit, struck off, or mutilated the ear of McCalmon while fighting with said McCalmon in self-defense, and if they believe further from the evidence that the defendant was free from fault in bringing on said difficulty, they must find him not guilty. .... (31) I charge you, gentlemen of the jury, that before you can convict the defendant you must be satisfied from the evidence, beyond a reasonable doubt, that the act was done unlawfully, intentionally and with malice aforethought, and unless you are so satisfied, you must acquit the defendant."

The defendant was convicted and appealed.
Baker & Stephens, for the appellant.
A. M. Garber, attorney general, for the state.

16 MCCLELLAN, J. Mayhem, as defined, in the presently pertinent aspect, by section 5095 of the Code, is committed when any person “unlawfully, maliciously and intentionally cuts, bites or strikes off an ear” of another person. This statute has been partially construed in Molette v. State, 49 Ala. 18. The essential ingredients of the offense, the necessary disfigurement of the person maimed being given, are that the act was done without authority of law and with evil intent and by design. In this instance the disfigurement, necessary to justify conviction, must have been such as would afford to the casual observer of the person injured, and not such as requires a close or unusual inspection to detect. In other words, the injury to the ear must be such as disfigures to ordinary observation, as distinguished from a wounding which simply mars the member: State v. Abram, 10 Ala. 928. Whether the injury is of the necessary 17 character must ordinarily be determined by the jury.

We can conceive of no reason why self-defense may not be available in justification of the act, providing, of course,

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the resistance is proportionate to the injury offered: State v. Crawford, 13 N. C. 425; State v. Evans, 2 N. C. 281; State v. Skidmore, 87 N. C. 509; 20 Am. & Eng. Ency. of Law, 250, and notes. What is spoken of in State v. Abram, 10 Ala. 928, as the instinct of self-defense, is, of course, entirely distinct from the doctrine above stated. That instinct cannot mitigate or justify the offense, whatever the circumstances attending.

Where there is allowed by the court, over objection, an improper question to a witness, no prejudicial error is committed if the answer is favorable to the objecting party: Southern Ry. Co. v. Crowder, 135 Ala. 417, 33 South. 335. Many of the exceptions noted in this record were thus rendered innocuous as reversible errors, if, indeed, they were primarily erroneous.

The questions propounded relative to the character and extent of the injuries received by McCalmon in the altercation, as well as the treatment and duration by the physician and his professional opinion thereon, were unobjectionable. There was, so far as we can discern from this record,

no legal testimony tending to show a preconceived plan or purpose to harm McCalmon. The question and its answer, both seasonably sought to be kept from the jury, by which it was shown that someone, not remembered by the witness, had informed him that an attack was to be made by the defendant and others on McCalmon, the witness, was pure hearsay, and patently inadmissible. The allowance of the question, as also the overruling of the motion to exclude, must work a reversal of the judgment.

18 Charges 2, 13 and 31 were properly refused. Those numbered 2 and 13 sought the benefit of self-defense, and each pretermitted entirely necessary elements thereof. While "maliciously,” as used in this statute, and "malice aforethought," a term used in charge 31, are in some respects synonymous, yet they are not always so, and for that reason, if not others, the charge was bad.

For the error noted, and we discover no other, the judgment will be reversed and the cause remanded.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.

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The Crime of Mayhem is the subject of a note to State v. Johnson, 65 Am. St. Rep. 771.

The Law of Self-defense is discussed in the notes to State v. Gordon, 109 Am. St. Rep. 804; State v. Sumner, 74 Am. St. Rep. 717.

HIGHTOWER v. COALSON.

[151 Ala. 147, 44 South. 53.] JUDGMENTS—Vacation-Equitable Relief.-If a person embodies in a usurious note a power of attorney to confess judgment, and judgment is confessed without notice to him, though in other respects the judgment is as valid as any other judgment, yet as the power of attorney is a part of the usurious contract, a court of equity will vacate the judgment and purge the transaction of usury. (p. 20.)

M. L. Ward, for the appellant.
Stallings, Nesmith & Drennen, for the appellee.

148 SIMPSON, J. The bill in this case was filed by the appellant against the appellee, seeking relief against a judg. ment on the ground that the judgment was rendered by confession under a power of attorney, which was embodied 149 in the note, authorizing judgment to be confessed by an attorney if the note was not paid at maturity. A demurrer to the bill was sustained by the chancellor, and the question presented by the appeal is whether a court of equity can grant relief in such a case.

The general principle is that if a party has permitted a judgment to be taken against him, without interposing the defense of usury, he cannot invoke the powers of a court of equity for relief: 29 Am. & Eng. Ency. of Law, 2d ed., 557; Jones v. Watkins, 1 Stew. 81; Jones v. Kirksey, 10 Ala. 579; Mallory v. Matlock, 10 Ala. 595; McCollum v. Prewitt, 37 Ala. 573. This principle has been declared applicable to judgment by confession; but an examination of the cases reveals the fact that those were cases in which a party had been brought into court by regular process and had confessed judgment. The better opinion is that where a party embodies in his note a power of attorney to confess judgment, and the judgment is confessed, without other notice to him, while in other respects the judgment is as valid as any other judgment, yet as the power of attorney is a part of the usurious contract, and as it would be a convenient method of evading entirely the usury laws, a court of equity will open the judgment, and purge the transaction of usury: 1 Pomeroy's Equity Jurisprudence, 3d ed., p. 461, sec. 278; Cook v. Jones, 1 Cow. 727; Thompson v. Berry, 3 Johns. Ch. (N. Y.) 359; Twogood v. Pence, 22 Iowa, 543; Mullen v. Russell, 46 Iowa, 386; Kendig v. Marble, 55 Iowa, 386, 7 N. W. 630; Bell v. Fergus, 55 Ark. 536, 18 S. W. 931;

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