The act of 1791, upon which this indictment is framed, received a cotemporaneous expo-sitiort by very able Judges i which, I conceive, is autho-¡.¡tative, even if there be doubts on tiie act itself. Evans’ case (1 Hay. 281) was decided in 1796, by Judges Haywood and Stone, and has been supposed heretofore to have settled this question. I see no reason now to disturb if, but entirely yield my assent to that case. They held, that the first blow, or a sudden affray, did not palliate the offence under the act ,* for if it did, the statute would be of little avail. Almost all such mannings fake place, not after a lying in wait, and with deliberate intent, but in sudden rencounters. The very object of the Legislature was to suppress this barbarous mode of fighting. If therefore a maim is perpetrated, the enormity of the act itself, and the impossibility almost, that it should not be done with the intent, to perpetrate if, creates the presumption, that the offender did the act on purpose, and with the intent to maim. This presumption arises out of the fact, and needs no further proof to create it. But it may be rebutted by the Defendant. This can be done, by showing that he did it in extremis, in the exercise of the natural right, and in the instinctive effort to defend himself, and as the only means of doing so ; or that it was accidental, or not within the probable consequences of what he did ; as if the ear were severed by falling against a sharp instrument, or the like. But certainly, the burthen of removing the inferences, thus morally probable, is thrown on the accused. For everything is to be taken against a man, who voluntarily maims another.
It is insisted however, that although the act uses the words “ on purpose,” something more is meant,than, merely a voluntary act; and that if requires “ malice aforethought,” because subsequently, in the same section, it says, “ with intent to murder or to maim.” An argument is likewise drawn from the first section, which is *427against cutting out the tongue, or putting out an eye, with malice aforethought, anil makes it felony for the second offence. It is said, that as the. second section relates to other members, namely, the nose, lip, ear, &c. (not including the tongue or eye) a maiming of these last, with malice aforethought, is not punishable at all under the statute, or not more grievously, than if not done with malice aforethought, but only on purpose ; and that this is unreasonable. 1 answer, as to the difference between the. two sections, that the Legislature intended it. If they iiad not, they would have used the same words, denoting the disposition, in both. But in the first, they make maiming of particular members with malice, a felony ; and in the next, maiming other members “ on purpose,” an aggravated misdemeanor. The difference of phraseology in the same statute, in reference to different acts, evinces a corresponding difference in the sense, if the second section meant malice aforethought, why does it not say “ malice aforethought ?” This observation satisfies me of the intention of the Legislature. I ha\e no right to enquire further, why they did not also make a malicious maiming of the, nose a felony, or punish it more severely than a maiming of the nose on purpose. I must take the act as it is. But I suppose the Legislature did not intend to affix to the maiming of any of the members mentioned in the second section, with whatever disposition effected, a-greater punishment than there, specified. That was thought a sufficient protection of them ; or as the offence was almost always committed in affrays, on the sudden, some regard might have been had to the excitement of passion, under which the perpetrator laboured.
The other objection, grounded on the words, “ with intent to murder,” has embarrassed me more. But, Í think, they also are susceptible of an explanation which will make them harmonize with the rest of the clause. These words were probably introduced for the purpose of *428obviating fbe doubts raised in Coke & Woodburne’s case, (4 Bl. Com. 207) upon the Coventry act. I do not think they ought to have any other effect, than to prevent a party from saying, he did not maim with intent to maim, but with intent to commit the higher offence of murder ; and if the maiming fake place without the design of committing that higher offence, then the disposition essential to the crime of murder, is not to be required to enter into the inferior offence. The maiming forbidden by this section, is that done “ on purpose,” with intent to murder or maim. The intent to murder can only exist, where the party is actuated with malice prepense. But if that exist, it includes “ on purpose;” if the Defendant maimed with intent to murder, he maimed on purpose. So far, therefore, the act is consistent; and certainly, when the intent, laid in the indictment, is to murder, the act must be proved to have been done with malice pre-pense: But I perceive no reason, when the intent to do another act, namely to maim, in which malice prepense, in a legal sense, is not a constituent principle, is charged, to say, that it also must be done with malice, when the statute come3 short of it, and declares the act a crime, if done on purpose. To maim with intent to murder, is to be actuated by malice ; to maim with intent to maim, is to do it on purpose — voluntarily. This last species of crime is complete, if perpetrated wittingly and willingly, without accident, or without pressing necessity. But even if the argument for the Defendant be allowed, so far as to make malice a necessary ingredient of each criminal act, forbidden in either section, it may well be asked, what is malice, in reference to this subject? Does it mean an actual, express, or preconceived disposition to do his adversary the particular injury inflicted ¡ I suppose not. But it is used in that enlarged and legal sensei which imports the intent or disposition, at the moment, to do, without lawful authority, and without necessity, that which the law forbids. And how does *429an act, done on purpose, and without the pressure of necessity, differ from that ? To me it seems, that if it be done on purpose, it is done with malice, so far as relates to this matter, although it might not be under such circumstances as would constitute murder $ and that malice prepense, technically speaking, need not be shown, except when the maim is laid to be with intent to murder. An act of such cruel vengeance, by the selecting, ás it were, a particular member for mutilation, imports a bad heart, and some degree of„deliberation, tlioughthe incitement arise in actual combat. Such was Lord Cokers opinion upon the maiming statute of 5 Henry IV, c. 5. That statute declares, that “ offenders, who cut out the tongue, or put out the eyes of any, and it be duly proved, and found that such deed was done of malice prepense, shall incur the pain of felony.” in commenting on it, Lord Coke says, if the act be done voluntarily and of set purpose, however .sudden the occasion, it is within the statute. (3 Inst. 62.) The correctness of this exposition is strongly to be inferred from the provisions of stat. 37 Henry VIII, c. 6; which are, that if any person maliciously, wil-fully and unlawfully cut off the ear of another, otherwise than by sudden affray, &c. This clearly shows, that the “ sudden affray” would have been within the previous words, descriptive of the intent; and hence it be* qarae necessary expressly to except it.
I therefore think the judgment below right.
The offences of wounding and maiming, enumerated in the act of 1754 (Mev. c. 56) were, « unlawful cutting out the tongue, putting out an eye, slitting the nose, biting or cutting off a nose or lip, or disabling any limb or member — to maim and disfigure;” and any person who committed, on purpose, either of those, offences, was declared to be a felon.
By the act of 1791-(lieu. c. 339) under which the Defendant is indicted, if is declared, that 44 if any person *430shall, of malice aforethought, unlawfully cut out or disable the tongue, or put out an eye, with intent to tnur-der, maim or disfigure, the person so offending, shall, f()p y,e first, offence, stand in the pillory; and for the second offence, be declared guilty of felony, without benefit of clergy.” The second section of the same act declares, that “ if any person shall on purpose unlawfully cut or slit the nose, bite or cut off a nose or lip, or cut off an ear, or disable any limb or member, with intent to murder, maim or disfigure, shall be imprisoned six months, and fined at the discretion of the Court.”
If I might be permitted to risk a conjecture, as to the reason that induced the Legislature to repeal the act of IT54, it would be this : that that act placed all the of-fences therein enumerated on the same footing. It punished the perpetrators of any of them, provided they committed the act on purpose; that is, as I understand the import of the term, wittingly, knowingly, intentionally, designedly at the moment of doing it, but not with malice aforethought. And I think this conjecture will appear to be the better founded, when the enactments of 1791 are examined. That act declares, tiiat some of the offences must be committed with malice aforethought; such as cutting out or disabling the tongue. That others enumerated in the second clause may be committed, if done on purpose, but without malice aforethought; such as biting off an ear, as is charged upon the Defendant in the present indictment. I am consequently of opinion, that judgment should be rendered for the State.
Per Curiam. — Let the judgment of the Court below be affirmed.