cient.1 Even the cutting and tearing down of a netting of twine, nailed at the top, bottom and sides of a window purposely left open at night, so that an entry could be effected, has been adjudged a breaking in burglary. "It makes no difference," observed the court, "whether the door is barred and bolted, or the window secured or not; it is enough that the house is secured in the ordinary way; so that by the carelessness of the owner in leaving the door or window open the party accused of burglary be not tempted to enter. Shutting the window-blinds and leaving the windows open for air is a common mode of closing a house in the warm season; if the blinds are forced, it is a breaking." But if a door or window is open a little way, it is not a breaking to push it further open. The thing displaced must be a part of the freehold. Yet as the chimney is never to be shut, an entrance there is a breaking, though nothing is moved. It is no breaking to walk into an open door or window, or crawl through a sufficient hole.

3

1 Rex v. Perkes, 1 Car. & P. 300; Reg. v. Bird, 9 Car. & P. 44; Anony. mous, 1 Anderson, 115; Gibbon's Case, Foster, 107; Rex v. Bailey, Russ. & Ry. 341, 1 Moody, 23; Rex v. Davis, Russ. & Ry. 499; Rex v. Hughes, 1 Leach, 406, 2 East, P. C. 491; [Kelley v. Com. (Ky.), 54 S. W. R. 949.]

2 Com. v. Stephenson, 8 Pick. 354, opinion by Parker, C. J. And see P. v. Nolan, 22 Mich. 229; [Sims v. S., 136 Ind. 358, 36 N. E. R. 278.]

3 Rex v. Smith, 1 Moody, 178, Car. Crim. Law (3d ed.), 293; Com. v. Steward, 7 Dane Abr. 136. The majority of the Scotch judges held that it is not house-breaking to enter by means of a key left in the door locked on the outside. Alston's Case, 1 Swinton, 433; [Rose v. Com. (Ky.), 40 S. W. R. 245. Unlocking the door to an apartment by means of a key on the same ring with key to defendant's own apartment is breaking. Com. v. Ballard (Ky.), 38 S. W. R. 678; P. v. Dupree, 98 Mich. 26, 56 N. W. R. 1046.] • Com. v. Trimmer, 1 Mass. 476; Rex

v. Paine, 7 Car. & P. 135; ante, § 281. [Digging under an unfloored loghouse, and thus effecting an entrance, constitutes breaking. Pressley v. S., 111 Ala. 34, 20 S. R. 647.]

Rex v. Brice, Russ. & Ry. 450; S. v. Boon, 13 Ire. 244, [57 Am. D. 555;] Stone v. S., 63 Ala. 115, 119; Walker v. S., 52 Ala. 376; [Olds v. S., 97 Ala. 81, 12 S. R. 409.]

6 S. v. Boon, supra; Rex v. Lewis, 2 Car. & P. 628; Com. v. Steward, 7 Dane Abr. 136; Anonymous, J. Kel. 70; S. v. Wilson, Coxe, 439; Pines v. S., 50 Ala. 153; [McGrath v. S., 25 Neb. 780, 41 N. W. R. 780; Milton v. S., 24 Tex. App. 287, 6 S. W. R. 303; Williams v. S. (Tex. Ap.), 13 S. W. R. 609; Costello v. S. (Tex. Cr. R.), 21 S. W. R. 360.]

7 Stone v. S., supra; [Miller v. S., 77 Ala. 41. Entering by a hole used for the passage of a band to and from the machinery of a gin house, where it is necessary to climb to the second story of the building and push the band to one side to make room for

§ 313. Forcibly break.— In Ohio, under a statute making it criminal to "forcibly break and enter" a building, actual force is held not to be necessary; but a breaking at common law, such as our last section describes, is sufficient.1

§ 314. Wound - Wounding.-A " wound " is a breach of the skin, or of the skin and flesh, produced by external violence. Separation of only the cuticle or upper membrane of the skin is not sufficient all of it must be parted; yet the injury need not extend into the flesh, and there need not be effusion of blood. Without such parting of the skin, it seems, there can be no wounding; for a man was held not to be wounded when his person was bruised and his collar-bone fractured. Yet a disruption of the internal skin as, that within the mouth, or the membrane lining the urethra — will suffice. Moreover, in the adjudged law, the meaning of the word has been considerably varied by the subject, and the connection in which it stands. Under 9 Geo. 1 (ch. 22, § 1), making punishable those who should "unlawfully and maliciously kill, maim or wound any cattle," etc., it was held that driving a nail into the frog of a horse's foot was a wounding,"which word wound,'" the court said, "appears to be used as contradistinguished from a permanent injury, such as maiming." Statutes which a good while prevailed in England the body, is breaking. Marshall v. S., 94 Ga. 589, 20 S. E. R. 432. But see Knotts v. S. (Tex. Cr. R.) 32 S. W. R. 532.]

1 Crim. Law, II, § 118, note; Ducher v. S., 18 Ohio, 308; Timmons v. S., 34 Ohio St. 426, [32 Am. R. 376.]

Forcible passing.- The passing of a toll-gate, after the keeper's refusal because of the non-payment of toll, is a "forcible passing." Camden, etc. Turnpike v. Fowler, 4 Zab. 205. Damaging. As to what is “damaging," see Reg. v. Whitting ham, 9 Car. & P. 234; Rex v. Tracy, Russ. & Ry. 452; Reg. v. Norris, 9 Car. & P. 241; Reg. v. Fisher, Law Rep. 1 C. C. 7, 10 Cox, C. C. 146.

a

2 "In criminal cases, the definition of a wound is an injury to the person by which the skin is broken."

S. v. Leonard, 22 Mo. 449, 451; [Jones v. Com., 87 Va. 63, 12 S. E. R. 220.]

3 Reg. v. McLoughlin, 8 Car. & P. 635; Rex v. Beckett, 1 Moody & R. 526; Com. v. Gallagher, 6 Met. 565; Moriarty v. Brooks, 6 Car. & P. 684; Rex v. Wood, 1 Moody, 278; Reg. v. Smith, 8 Car. & P. 173. And see Reg. v. Price, 8 Car. & P. 282.

4 Rex v. Wood, 4 Car. & P. 381.

5 Reg. v. Smith, 8 Car. & P. 173; Reg. v. Warman, 1 Den. C. C. 183. 6 Reg. v. Waltham, 3 Cox, C. C. 442. See Reg. v. Jones, 3 Cox, C. C. 441.

7 Haywood's Case, 2 East, P. C. 1076, 1077. According to the report of this case by Russell and Ryan (Rex v. Haywood, Russ. & Ry. 16), the sole question submitted to the judges was whether an injury not permanent is within the statute.

were 9 Geo. 4 (ch. 31, § 12), and 7 Will. 4 and 1 Vict. (ch. 85, § 4), superseding it, the words whereof are "stab, cut or wound;" and it was decided, not without some differences of opinion, that, as the first two of these three connected words imply the use of some instrument, so must also the last one;1 and that, therefore, a wound inflicted with the teeth, as in biting off the finger, ear or nose, is not within the statute. The kind of instrument was immaterial; a blow from a hammer,3 from the butt-end of a gun, from a bludgeon, or a kick with a shoe, parting the skin, being as good in law as a cut from a sharp weapon. Nor was it any objection that the instrument, instead of inflicting the wound directly, fell on some other thing,— for example, the injured person's hat,- and the latter broke or cut the skin. But oil of vitriol, thrown on the face, was not deemed an instrument to make the injury a wound within the statute. The later enactments of 24 and 25 Vict. (ch. 97, § 40), employing the words "kill, maim or wound any cattle," and 24 and 25 Vict. (ch. 100, § 11), the expression wherein is “wound, or cause any grievous bodily harm to, any person," are differently construed. They do not require, to inflict a "wound," the use of any instrument. Thus, under the former, a wound in the mouth of a horse may be created by drawing out its tongue with the hand.9

$315. Cut-Cutting-Stab-Stabbing.- Where the words "cut or stab" are used as in the before-mentioned English statutes,10 they "relate only to such wounds as are made by an instrument capable of stabbing or cutting; stabbing being prop

Even according to the other report, as the injury was to a part where nature has provided no skin, or where perhaps the hoof may be deemed the skin, the decision is not absolutely in conflict with the general doctrine. Still perhaps the particular wording of this statute required the term "wound" to be construed as meaning something different from what it does in the other statutes.

1 See ante, § 245.

2 Jenning's Case, 2 Lewin, 130; Elmsly's Case, 2 Lewin, 126; Rex v. Stevens, 1 Moody, 409; Rex v. Harris, 7 Car. & P. 446.

Reg. v. Smith, 8 Car. & P. 173; Rex v. Withers, 1 Moody, 294, 4 Car. & P. 446; Rex v. Hughes, 2 Car. & P. 420. 4 Rex v. Sheard, 2 Moody, 13, 7 Car. & P. 846.

5 Rex v. Payne, 4 Car. & P. 558.

6 Rex v. Briggs, 1 Moody, 318, 1 Lewin, 61.

7 Rex v. Sheard, 2 Moody, 13, 7 Car. & P. 846.

8 Rex v. Morrow, 1 Moody, 456; Henshall's Case, 2 Lewin, 135. And see 1 Russ. Crimes (3d Eng. ed.), 731.

9 Reg. v. Bullock, Law R. 1 C. C. 115, 11 Cox, C. C. 125. 10 Ante, § 314.

erly a wounding with a pointed instrument, and cutting being a wounding with an instrument having a sharp edge. And if the indictment be for cutting, evidence of a stab will not support the charge; for, as the statute uses the words in the alternate, 'stab or cut,' so as to distinguish them, the distinction must be attended to in the indictment." Yet cutting or stabbing need not have been the purpose for which the instrument was manufactured. For example, a blow from the sharp claw of a hammer, or the sharpened point of an iron crow, may inflict a cut; but not from the blunt end of a hammer, or from a square iron bar producing a contused or lacerated gash," or from the scabbard of a sword, or from the handle of a windlass. It was held in New Jersey that, if the nose is bitten off, it is cut off,3— a conclusion not in accord with the English doctrine. Under 1 Jac. 1 (ch. 8, § 2), employing the words "stab or thrust any person," Hawkins says, "the killing of a man with a hammer, or such like instrument, which cannot come properly under the words 'thrust' or 'stab,' is not a killing within the statute." 10 The knife, to stab, need not do more than penetrate the skin and draw blood; at least, a depth of a quarter of an inch is enough."

§ 316. Maim-Maiming.- The word "maim" is not, according to the better use, a synonym for mayhem, which is a particular sort of aggravated maim.12 But, like mayhem, it im

11 Russ. Crimes (3d Eng. ed.), 728; ante, § 298; Rex v. McDermot, Russ. & Ry. 356. See, however, ante, §§ 247, 248; post, § 326.

2 Rex v. Atkinson, Russ. & Ry. 104, 1 Russ. Crimes (3d Eng. ed.), 728.

3 Rex v. Hayward, 1 Russ. Crimes (3d Eng. ed.), 729, Russ. & Ry. 78. And see Wilson v. Com., 3 Bush, 105. 4 Rex v. Atkinson, supra.

5 Rex v. Adams, 1 Russ. Crimes (3d in the sense of mayhem; as, in 1 Eng. ed.), 728. Hawk. P. C. (Curw. ed.), p. 107, §§ 1-3.

"Rex v. Whitfield, 1 Russ. Crimes And the indictment for mayhem ap(3d Eng. ed.), 728.

pears properly to employ the expres

Anonymous, 1 Russ. Crimes (3d sion "did feloniously maim," as an Eng. ed.), 728.

8 S. v. Mairs, Coxe, 453.

equivalent for the Latin felonice mayhemavit. Crim. Pro.. II, § 852;

9 See Rex v. Harris, 7 Car. & P. 446; 1 Chit. Crim. Law, 244; Com. v. Newell, 7 Mass. 245, 247; 3 Inst. 118; 2

ante, § 314.

101 Hawk. P. C. (Curw. ed.), p. 90, Hawk. P. C. (Curw. ed.), p. 249, § 77.

plies a permanent injury or crippling, certainly when employed with reference to cattle. And such appears to be its general legal meaning. Mayhem, not unfrequently termed maim of the person, signifies more when we are speaking of the common law; namely, such a bodily injury as renders the sufferer less able in fighting to defend himself or annoy his adversary. Under a statute making it a misdemeanor to cut off the ear with intent to maim, the court observed that the word was used in the popular sense of mutilate, and not as synonymous with mayhem." Another statute provided in terms that maiming should consist in "unlawfully disabling a human being, by depriving him of the use of a limb or member, or rendering him lame, or defective in bodily vigor." And there are still other statutory definitions in our states. The English judges held that pouring acid into the eye of a mare, and thereby blinding her, is a maiming within 7 and 8 Geo. 4, ch. 30, § 16, which made it felony to "unlawfully and maliciously kill, maim or wound any cattle."9

§ 317. Slit the nose.10-These words are answered by any division, perpendicular or transverse, of the flesh or gristle."

§ 318. Grievous bodily harm.- This "is a generic term, which may comprehend severe wounds or hurts of various kinds; but they are not required to be such as are likely to produce a permanent injury." 12 Much less need they put in hazard the life.13 It is, for example, a grievous bodily harm to

13

5 Crim. Law, II, § 1001; 1 Hawk. P. C. (Curw. ed.) p. 107, §§ 1, 2; Roscoe, Crim. Ev. 785.

6 Com. v. Newell, 7 Mass. 245, 249. 7 Baker v. S., 4 Pike, 56.

9 Rex v. Owens, 1 Moody, 205. 10 See Crim. Law, II, § 1003; Crim. Pro., II, § 855.

11 Rex v. Carroll, 1 Leach, 55; s. c. nom. Rex v. Carrol, 1 East, P. C. 394; [Com. v. Blaney, 133 Mass. 571.]

12 Archb. New Crim. Pro. 264; Reg. v. Ashman, 1 Fost. & F. 88.

13 Reg. v. McNeill, 1 Crawf. & Dix, C. C. 80. And see Rex v. Phillips, 1 Crawf. & Dix, C. C. 164; Reg. v. Caruthers, 3 Crawf. & Dix, C. C. 391; Rex v. Hunt, 1 Moody, 93; Roscoe,

8 S. v. Briley, 8 Port. 472; S. v. Sim- Crim. Ev. 786. mons, 3 Ala. 497.

Disfiguring. As to the word "disfiguring," see Crim. Law, II, §§ 995, 1001; S. v. Smith, Cheves, 157.

Great bodily harm, and serious bodily harm,-in the law of selfdefense, are substantial equivalents. Lawlor v. P., 74 IL 228; [Branch v.