(after stating the facts). ' Appellant complains only that the evidence is not sufficient to support the verdict. The statute provides, Sec. 1865, Kirby’s Digest, “If any person shall wilfully and of his malice aforethought, cut or bite off the ear * * * cut or bite off the-nose or lip of any person, he shall be adjudged guilty of maiming.” Maiming consists in unlawfully disabling a human being by depriving him of the use of a limb or member, etc. Sec. 1864.
It is argued for appellant that in order to commit the offense the act must be done with premeditated design tó do the very act, that it occurred in an ordinary affray while the parties were fighting together and without any intention to do the particular thing and that no offense was committed within the meaning of the statute. He relies upon the case .of Godfrey v. The People, 63 N. Y. 207, as authority for this contention and although this case supports the position, the statute under which the offense there was charged, is altogether unlike ours. If the testimony had only shown that the injury occurred while the parties were fighting by mutual agreement, it would not have constituted the offense of maiming. Sec. 1573, Kirby’s Digest.
Appellant admits having fought with the injured person and that he bit off his nose and the testimony shows that he started the fight and struck the first blow. He intended to do the thing which he did. “The act being proved to have occurred in an encounter, the law presumes that the act was done with the .intent re*240quired by the law to constitute guilt.” I. Wharton Criminal p. 981; Clark’s Criminal Law, 2s13.
In Baker v. State, 4 Ark. 56, the court in discussing the statutory definition of maiming, said: “It is implied that the act being unlawful in itself, evidences a malicious intent and is immaterial by what means or with what instrument the injury is effected.” It is immaterial at what period of time during the encounter the malicious design is formed to inflict the particular injury, so long as it was intended or purposely done.
The Supreme Court of Alabama under a statute similar to ours, in State v. Simmons, 3 Ala. 497, said: “It is not necessary where injury is done in a certain conflict that the defendant should'have formed the design previous to the conflict. It was sufficient if the defendant maliciously and on purpose does the act in pursuance of a design formed during the conflict.” See also Molette v. State, 49 Ala. 18; Terrell v. State, 86 Tenn. 523; State v. Crawford, 13 N. C. 425; Slattery v. State, 41 Tex. 619; State v. Jones, 70 Iowa 505.
Appellant went to the field where the injured party was at work, cursed and abused him, assaulted him with' some sort of a weapon that cut a three inch gash in his head and then in the continuance of the fight, bit off his nose,at the time intending to bite and knowing he was doing so. ■
The evidence is sufficient to support the verdict and the judgment is affirmed.