019-NLR-NLR-V-11-ANTHONI-MUTTU-v.-SAMUEL.pdf
( 65 )
Present: Mr. Justice Wendt.
ANTHONI MUTTU v. SAMUEL.
P. C. Badvlla, 9,876.
Mischief—Cuttinga teat of acow—“ Maiming ”—Permanentinjury—
Penal Code, ss. 409 and 412.
Cutting the teat of a cow does not amount to " maiming ” withinthe meaning of section 412 of the Penal Code. It is an offencepunishable under section 409 and 'not under 412 of the Penal Code,and is therefore cognizable by a Police Court.
A
PPEAL by the accused from a conviction under, section 409 ifthe Penal Code.
. The facts sufficiently appear in the judgment.
H. .4. J aye wardens (with him A. St. V. Jayewardene), for theaccused, appellant.
Samarahhody, for .the complainant, respondent.
Cur. adv. vult.
November 7, 1907. Wendt J.—
The .appellant in this case has been convicted of “ mischief, ” inthat he cut one of the teats of a cow belonging to Anthoni of Parkestate, and thereby committed an offence punishable under section409 of the Penal Code. For this offence he has been sentenced tothree months’ rigorous imprisonment. His counsel has submittedthat the evidence is insufficient to establish .the charge, but I cannotagree with him. The evidence is direct, and the Magistrate, thoughnot considering it strong, has believed it. I cannot accede to theappellant’s application for a mitigation of the punishment, becausethe offence is a cruel and wanton one.
The most important point argued in appeal, however, was this.Counsel submitted that the evidence disclosed an offence punishableunder section 412, and not triable by the Police Court at all, but bythe District Court. • If that were so, it would be my duty to quashthe proceedings and to direct the Police Magistrate to proceed as ina non-summary case. The point was considered by the Magistratehimself, and he says in bis judgment: “ Unfortunately it has beenheld that section 412 will not apply to cases where, like this, theanimal is not permanently maimed.” The medical evidence showsthat the cow has not been permanently injured-or rendered useless.The question is, whether it was maimed within the meaning ofsection 412. Maiming or mayhem is a technical term of the EnglishLaw, meaning, according to Wharton’s lexicon, “ the deprivationof a member proper for defence in fight, as an arm, leg, finger, eye,IJ. N. A 09900 (8/50)
1907.
November 7.
1907.
November 7.Wendt J.
or a fore tooth, yet not a jaw tooth, or the ear, or a nose, because theyhave been supposed .to be of no use in fighting." This definitionwould exclude the part of which the animal in the present case wasdeprived, which could not properly be described as a member, noras falling within the same category as a finger, eye, or fore tooth.In the case of Regina v. Jeans,1 to which I have been referred,the prisoner was charged with feloniously maiming a horse. Theevidence showed that he had wrenched away a part of its tongue.The wound had healed, and the animal was able to work as well asbefore, the only injury resulting from the loss of the point of itstongue being that it could not eat its com quite so fast as before.In directing an acquittal, Wightman J. said, “ there is no such per-manent injury inflicted on the animal in this case as will supportthe count for maiming.” Beading these words in the light of theargument, I think what the Court meant was that, although therewas no question as to the permanency of the injury, the injuryitself did not amount to maiming. Similarly, I .think in the presentcase the cow was not maimed., The Court therefore had jurisdiction,and I dismiss the appeal.
Appeal dismissed.