Opinion
02-06-1903
STATE v. HOLMES.
Robert H. Richards, Dep. Atty. Gen., for the State. Daniel O. Hastings, for defendant.
Clara Holmes was indicted for maiming. On motion to quash the indictment. Denied.
Argued before PENNEWILL and BOYCE, JJ.
Robert H. Richards, Dep. Atty. Gen., for the State.
Daniel O. Hastings, for defendant.
The indictment, consisting of two counts, was framed under section 9, c. 127, p. 921, Rev. Code 1852, amended in 1893, and the first count of same, omitting the formal opening, was as follows: "That Clara Holmes late of Wilmington Hundred in the County aforesaid, on the Tenth day of January, in the year of our Lord, One thousand nine hundred and three, with force and arms, at Wilmington Hundred in the County aforesaid, did, then and there, unlawfully and maliciously, in and upon one Bella Johnson, make an assault, and then and there, unlawfully and maliciously, a certain acid, the kind and character of which are to the Grand Jurors, aforesaid, unknown, with the right hand of her, the said Clara Holmes, upon and into both the eyes of her, the said Bella Johnson, did throw, and by such throwing, as aforesaid, she, the said Clara Holmes, did, then and there, the left eye of her, the said Bella Johnson, put out and destroy, and then and there, and thereby, she, the said Clara Holmes, her, the said Bella Johnson, did maliciously maim, against the form of an Act," etc. The second count of the indictment was similar to the above, except that it alleged that the left eye of the said Bella Johnson was permanently injured by the said defendant.
Mr. Hastings, for defendant, moved to quash the indictment; contending that the statute under which the indictment was framed provides, first, that, if any person shall maliciously and by lying in wait maim another, etc.; and, second, that if any person shall maliciously without lying in wait commit the same crime, he shall be deemed guilty of the offense of maiming. The indictment did not state whether the offense charged was committed by lying in wait or without lying in wait.
Mr. Richards, Deputy Attorney General: It is clear from the indictment itself that it is drawn under section 9 of chapter 127, Rev. Code 1852, amended in 1893. Section 8 specifically makes the offenses enumerated felonies, and says they may be committed by lying in wait if drawn under section 8, the indictment would allege that it was done feloniously. It does not charge a felony, and therefore could not be drawn under section 8.
As to the contention that the indictment must contain the averment that the act was done without lying in wait, I submit that the words "lying in wait," in section 9, are simply used therein for the purpose of distinguishing it, in the manner in which the offense is committed, from section 8.
PENNEWILL, J. The court refuse the motion to quash the indictment or either of the counts thereof.
The defendant thereupon entered a plea of guilty.