To constitute the offense of maiming, the act must be done both willfully and maliciously. A willful act is one committed with an evil intent, with legal malice, without reasonable ground for believing the act to be lawful, and without legal justification. A malicious act is one committed in a state of mind which shows a heart regardless of social duty and fatally bent on mischief; a wrongful act intentionally done without legal justification or excuse.
In trials for this' offense the legal signification of the words “ willfully” and “maliciously,” must be explained to the jury. (Willson’s Texas Crim. Laws, secs. 876 and 877.) This, we think, was substantially and sufficiently done in this case. But we are of the opinion that the court committed» a material error in rejecting the testimony of the witnesses Ledbetter and Foster, offered by the defendant for the purpose of showing, or as tending to show, that the violence inflicted upon the injured party was not inflicted willfully and maliciously, within the legal signification of those terms. We think the rejected testimony was pertinent to the issue of intent, and that the defendant was entitled to have it placed before the jury for their consideration, in connection with the other evidence adduced.
It is insisted by counsel for the defendant that the law applicable to the facts of this case was not given in charge to the jury. It appears from the evidence that the defendant, one Estes, Dansby, the injured party, and others were confined as prisoners in the county jail. Dansby had testified as a witness at an inquest held over the dead body of a negro prisoner who had been killed in said jail a short time before the difficulty occurred which is the foundation of this prosecution. Defendant and Estes charged that he had given false testimony before said inquest, and they and others of the prisoners agreed that for so falsely testifying they would whip Dansby with a leather strap, an instrument which they had in jail. In pursuance of this *550agreement they assaulted Dansby, who resisted them. Estes, assisted by .the defendant and others, threw Dansby upon the floor. Estes and Dansby were fighting each other, and during the fight, while the parties, were down on the floor, Dansby was. deprived of a portion of one of his thumbs.
It is clear from the evidence, we ■ think, that the. injury to Dansby’s thumb was caused by the teeth of Estes. Estes, seized Dansby’s thumb with his teeth, and the defendant kicked Dansby on the arm, thus extricating Dansby’s thumb from Estes’s teeth. It is not clear from the evidence what motive actuated the defendant in kicking Dansby on the arm; whether his purpose was to aid Estes in the struggle, or to releaseDansby’s thumb from Estes’s teeth. But we will not pause to. consider or discuss this feature of the case.
The important and controlling question presented by the facts is, whether or not the defendant is criminally responsible for the act of Estes in biting Dansby’s thumb. It is made clear by the evidence that defendant, Estes and others had entered into a conspiracy to whip Dansby with the leather strap. Does the fact that defendant had entered into, and engaged in the execution of, such a conspiracy render him liable with Estes for biting Dansb'y’s thumb?
Upon the subject of the responsibility of a-conspirator for the acts of his co-conspirators, the rule, as we deduct from the authorities, is that each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of the common design, as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan. In other words, the act must be the ordinary and probable effect of the wrongful act specifically agreed on, so that the connection between them may be reasonably apparent, and not a fresh and independent product of the mind of one of the confederates outside of or foreign to the common design. (1 Whart. Crim. Law, 9 ed., secs. 214-220, 397; 1 Bish. Crim. Law, 7 ed., secs. 640, 641; Lamb v. The People, 96 Ill., 73; Ruloff v. The People, 45 N. Y., 23; Thompson v. The State, 25 Ala., 41; Frank v. The State, 27 Ala., 37; Williams v. The State, 9 Crim. Law Mag., 480; Kirby v. The State, 23 Texas Ct. App., 13.) The last cited case is not in conflict with the rule as above stated, but is in perfect harmony with it when viewed with reference to the facts before the court.
Now, the rule being as we have stated it to be, the responsi*551bility of the defendant for the said act of Estes depends upon the solution of another question; that is, was the act of Estes in biting Dansby’s thumb the ordinary and probable effect of the wrongful act of attempting to whip Dansby with a leather strap, or was it a fresh and independent product of the mind of EsteS, outside of or foreign to the common design? If the former, the defendant is responsible for the act; but if the latter, he is not responsible for it. How must this question be solved? By the. jury alone. It is a question of fact, and within the exclusive province of the jury.
Opinion delivered January 25, 1888.In the recent and celebrated case of Spies v. The People, H. E. Reporter, page 865, the court said: “Whether or not the act done by a member of a conspiracy naturally flowed from and was done in furtherance of the common design are questions of fact for the jury.” We are of the opinion that the court erred in not submitting the question above stated to the jury, accompanied by proper instructions explaining the rules of the law hereinbefore announced, This phase of the case as made by the evidence was not covered by the charge. Defendant’s counsel requested a special charge relating to it, which, although not full and accurate, was sufficient to direct the attention of the court specially to the issue.
Another issue which should have been submitted to the jury is, whether the injury inflicted on Dansby’s thumb constituted maiming. Biting off a portion of a member of the body is not necessarily maiming. It should be left to the jury to determine in all such cases whether the member was so injured as to substantially deprive the injured party of it. (Willson’s Texas Crim. Laws, sec. 877.) This issue the court failed to submit to the jury, and in so failing did not give the jury the whole law applicable to the evidence.
Because of the errors mentioned, the judgment is reversed and the cause is remanded for a new trial.
Reversed and remanded.