Maiming, by our-Penal Code, is defined as follows : “To maim is to wilfully and maliciously cut off or otherwise deprive a person of the hand, finger, toe, foot, leg, nose, or ear; to put out an eye, or in anyway deprive the person of any other member of his body.” (Penal Code, Art. 507.)
In this case the defendant was charged by proper indictment with having maimed C. B. Marsters by shooting off a toe of the said Masters. This charge is amply supported by the evidence as to the act of shooting, and the result of -such act, and the only-question presented by the record which we deem worthy of consideration, is as to the correctness of the charge of the court, with reference to the facts of the case. After giving the statutory definition of maiming, the charge explains the meaning of the words “ wilfully and maliciously,” as used in said definition, and the explanation so given is in accordance with the decisions of this court made under similar statutes, and is in our opinion correct. (Thomas v. the State, 14 Texas Ct. App., 200; Shubert v. the State, 16 Texas Ct. App., 645 ; Trice v. the State, 17 Texas Ct. App., 43; McKinney v. the State, 8 Texas Ct. App., 626.)
It is insisted by counsel for the defendant that the word “ wilfully,” as used in this statute, means more than it has been held to mean in other cases; that it means not only that the act causing the injury was intentional, but that the party inflicting-the injury intended the probable result of the act. In other words, that it means a specific intent on the part of the person inflicting the injury to maim the person injured, or that the person inflicting the injury must have known at the time that the means used by him was calculated to maim.
If this had been a prosecution for an assault with intent to-maim, the specific intention to maim would be essential, and it would have been error if the court had failed to so instruct the' jury. But where, as in this case, the maiming was actually effected, if the act was committed with the evil intent, with legal malice, without reasonable ground for believing it to be lawful, and without legal justification, it was wilful and malicious, whether or not it was committed with a specific intent to maim. And if the means used in the commission of the offense were such as would, in the manner used, ordinarially result in maiming, the law presumes that-the intention was to maim (Penal Code, Art. 50), without regard to the knowledge of the party using* such means as to whether or not the same were calculated to *51maim. In our opinion -the court charged the law of this case fully, fairly and correctly, and did not err in refusing the special charges requested by the defendant.
Opinion delivered October 23, 1886.When considered as a whole, and with reference to the facts of the case, we aré of the opinion that the charge is unobjectionable. It was proper that the court should instruct the jury that under this indictment the defendant could not be convicted of an assault with intent to murder. This instruction was favorable to the defendant, and was warranted by the evidence, because there was evidence tending to show that the defendant had committed an assault upon Marsters with intent to murder him, just prior to maiming him, and it was necessary, in view of such evidence, that the jury should .be instructed to confine themselves to a consideration of the offense charged in the indictment.
In our judgment the evidence fully warrants the conviction, and, finding no error in the judgment, it is affirmed.
Affirmed.