Hammond v. State

⁴⁵³ CHARLES E. ORTH, Jr., Judge, Specially Assigned. I One hundred and thirty-eight years ago the Maryland Legislature declared that it was a crime [i]f any person ... shall assault and beat any person, with intent to maim, disfigure or disable such person____ Acts 1853, ch. 99, § 1, now codified as § 386, Article 27 of the Maryland Code (1957, 1987 Repl.Vol.). During all those years, the Legislature has never explicitly stated whether the specific intents required 1 must be to maim, disfigure, or disable permanently. In fact, the Legislature has addressed the statute only once during that period.

As reenacted by Acts 1966, ch. 628, the Legislature did no more than increase the minimum sentence authorized from six months to eighteen months. The substance of the statute remains today as it was when the statute was first enacted. II Until today, this Court has never been called upon to decide if the maiming, disfigurement, or disablement intended by the assailant must be permanent or whether the intent could be to maim, disfigure, or disable temporarily. The question is squarely before us now because the jury, during its deliberations at the trial of Walter Pyle Hammond in the Circuit Court for Anne Arundel County, asked the question of the presiding judge, and defense counsel objected to his answer.

Hammond was charged by a criminal information with the commission of seven crimes. The charges stemmed from the reaction of Hammond when he entered the home of his girl friend, Peggy McElroy, and found her in bed with David Schoene. Hammond got a shovel and smote Schoene repeatedly with it, leaving Schoene bloodied and bowed. ⁴⁵⁴ The jury convicted Hammond of assault with intent to maim, disfigure and disable. Sentence was imposed.

Hammond appealed from the judgment. We ordered the issuance of a writ of certiorari on our own motion before decision by the Court of Special Appeals. The trial judge instructed the jury regarding the crimes it was to consider. One of them was assault with intent to murder.

He explained that offense and then said: The next offense [(charged in count 2)] is called assault with intent to maim. Now again, that label is a little misleading, because we’re not talking about maiming in the sense that you understand it to be. To convict the Defendant of this charge, which is captioned assault with intent to maim, the State has to prove first that the Defendant struck at the victim, same as assault with intent to murder; that the Defendant intended to disfigure or disable the victim. So, it’s not with the intent to kill but there must be the specific intent to either disfigure or disable.

And like assault with intent to murder it has to be committed without justification or mitigation. So, disfigure has its common, ordinary meaning. And disable means simply to incapacitate or physically impair the victim. Make your determination.[ 2 ] After the jury had deliberated for a time, it sent a note to the judge, asking for “clarification” with respect to two of the charges.

The first question, which is the one pertinent to this appeal, 3 was headed, “INTENT TO MAIM.” It read: “ — DISABLEMENT—MUST IT BE PERMANENT OR CAN IT BE TEMPORARY.” The judge replied in writing over defense counsel’s objection: Whether any disablement is permanent or temporary is immaterial as long as there is a disablement. ⁴⁵⁵ Hammond carries the challenge to the judge’s response to us. He claims that assault with intent to maim, disfigure, or disable requires an intent to permanently maim, disfigure, or disable. Therefore, he urges, the judge’s supplemental instruction, whether a disablement is permanent or temporary is immaterial, constituted prejudicial error. Ill A Section 386 is one of a package of three statutes grouped under the subtitle “Maiming” in Article 27.

The other two are now codified as §§ 384 and 385. The statutes stem from the early English common law offense of mayhem. 4 What are now §§ 384 and 385 were enacted by Acts 1809, ch. 138, § 4. {See Kilty, Laws of Maryland Compiled, Vol. 4, 1807-1812). Paragraph 4 of § 4, now § 384 of the Code, did no more than give legislative recognition to the common law crime of mayhem and authorize punishment for its violation. The statute has appeared in every code since its enactment and has not been touched by the General Assembly since 1809.

It simply prescribed: Every person, his aiders and abettors, who shall be convicted of the crime of mayhem or of tarring and feathering, shall be sentenced to the penitentiary for not more than ten years nor less than eighteen months. Paragraph 5 of § 4, now § 385 of the Code, provided: Every person, his or her aiders, abettors and counsellors, who shall be duly convicted of the crime of cutting out or disabling the tongue, putting out an eye, slitting the nose, cutting or biting off the nose, ear or lip, or cutting or biting off or disabling any limb or member of ⁴⁵⁶ any person, of malice aforethought, with the intention in so doing to maim or disfigure such person shall be sentenced to undergo a confinement in the said penitentiary for a period of not less than two nor more than ten years____ Acts 1966, ch. 628 looked at § 385. It did no more, however, than declare the crime to be a felony, make some housekeeping changes, set the sentence upon conviction at “not less than two nor more than ten years,” and change the intent in committing the proscribed acts from “maim or disfigure” to “mark or disfigure.” B Section 384 designated the crime of mayhem but did not define it. It was stated in Hochheimer, The Law of Crimes and Criminal Procedure (2d ed., 1904) (Hochheimer), § 386 at 423: Mayhem, or maim, is bodily hurt, or the infliction thereof, whereby a man is deprived of the use of any member of his body or any sense which he can use in fighting, or by the loss of which he is generally and permanently disabled.

Hochheimer observed that [m]ayhem is to be distinguished from bodily hurt involving mere disfigurement. Cutting off, disabling or weakening a hand or finger, striking out an eye or a front tooth and castration are maims; but cutting off an ear or the nose is not maim. Id. See 4 W. Blackstone, Commentaries (Blackstone) ²⁰⁵-206 (1769); LaFave & Scott, Criminal Law (2d ed. 1986) (LaFave) § 7.17(a) at 696; Perkins and Boyce, Criminal Law (3rd ed. 1982) (Perkins) ch. 2, § 8 at 239; C. Torcia, 2 Wharton’s Criminal Law (14th ed. 1979) (Wharton) § 204 at 336.

At English common law, Blackstone said at ²⁰⁵-206, mayhem was “the violently depriving another of the use of such of his members as may render him the less able in fighting, either to defend himself, or to annoy his adversary.” “[T]he rationale,” observed LaFave, § 7.17(a) at ⁴⁵⁷ 696, “being to preserve the King’s right to the military services of his subjects.” “By a series of early English statutes (in 1403, 1545, 1670),[ 5 ] mayhem was broadened to include cutting out or disabling the tongue, severing the ear, and slitting the nose or lip.” LaFave § 7.17 at 696-697. See Hochheimer, § 386 at 423; Wharton, § 206 at 337; Perkins, § 8, ch. 2 at 239-240. It is apparent on the face of § 385 that it contemplates the old crime of mayhem as broadened by the early English statutes. Section 385 and the English common law after Sir John Coventry’s unpleasant experience speak in terms of the same types of injuries.

Thus, the Legislature has covered the field of mayhem. Section 384 encompasses the old common law crime; § 385 proscribes conduct in terms of the common law offense as broadened; § 386 creates a new offense of assault with intent to maim, disfigure, or disable. IV A As we have seen supra, Hochheimer spoke of mayhem in terms of “permanently disabled.” § 386 at 423. He does not stand alone in this view.

According to Blackstone, common law mayhem covered permanent disablement of an appropriate bodily member as well as its dismemberment. ²⁰⁵-206. LaFave declared: Mayhem at common law required a type of injury which permanently rendered the victim less able to fight offensively or defensively; it might be accomplished either by the removal of (dismemberment), or by the disablement of, some bodily member useful in fighting. ⁴⁵⁸ § 7.17 at 696 (emphasis in original). LaFave stated, “Today, by statute, permanent disfigurement has been added----” Id. LaFave made clear: It is a requirement for mayhem that the disabling injury be permanent, so that the temporary disablement of a finger, arm, eye, or other member will not do.

Id. 7.17 at 698. Perkins spoke of mayhem in terms of a permanent injury. Ch. 2, § 8 at 239, 241, and 242. Wharton flatly declared: “At common law, and by statute, mayhem requires a disablement or disfigurement which is permanent in nature.” § 206 at 337.

It has been held ... that when a statute speaks of the disablement or disfigurement of a limb or a member of the body as a maiming, a permanent injury is contemplated such as at common law would constitute a mayhem. Hence, a temporary disabling of a finger, an arm, a leg, or an eye, is not sufficient to constitute the statutory offense. 53 Am.Jur.2d § 3 at 490 (footnote omitted). See Annot., 16 A.L.R. 955 (1922), supplemented by Annot., 58 A.L.R. 1320 (1929). There is no disagreement among the scholars that mayhem as it was known in ancient times and as it is known today requires a permanent injury.

This is so whether the offense is spoken of in terms of maiming, disfigurement, or disablement and despite the fact that the emphasis in modern times is on the completeness and integrity of the body, rather than its efficacy in battle. B We have no reason to assume that when the Legislature created the offense of assault with intent to maim, disfigure or disable a hundred and thirty-eight years ago and reviewed the statute, twenty-five years ago, it was not fully aware of the requirement at the common law that maiming, disfigurement or disablement be permanent. We noticed, supra, that §§ 384, 385 and 386 are all concerned with ⁴⁵⁹ mayhem. In Booth v. State, 306 Md. 172, 212 , 507 A.2d 1098 (1986), reversed in part on other grounds, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), we linked § 385 and § 386.

We said that “[a]n assault with intent to maim [under § 386] is an assault perpetrated with the intent to inflict one or more of the injuries described in § 385.” It would be incongruous, indeed, if the Legislature, in light of the concept of the permanent nature of a maiming, which has been firmly fixed in the law since ancient times, intended, by its silence on the matter, that maim, disfigurement and disablement as they appear in § 386, need only be temporary. The intent to maim reflects the crime of mayhem, and the intent to disfigure and the intent to disable, in the context in which they appear, are inexorably bound to that crime. We cannot conceive that the Legislature, in proscribing an assault with intent to maim, disfigure or disable, thereby divorced disfigure and disable from the crime of maiming. The face of the statute does not support such a notion, the legislative history of the statute does not suggest it, and no opinion of this Court indicates it.

We hold that the trial judge erred when he instructed the jury, in effect, that if it found that Hammond assaulted Schoene with the intent to maim, disfigure or disable him, it was immaterial whether the intent was to maim, disfigure, or disable him permanently or temporarily. It was very material in the circumstances here, as a review of the evidence clearly demonstrates. We give a compendium of the evidence. C The catalyst in the sordid affair, which the trial brought to light, was Peggy McElroy.

She was enamored of Hammond and David Schoene, and she bestowed her affections from time to time on each of them. McElroy lived with Hammond in her home for some one and a half years. She asked him to leave the residence in June 1985, but their relationship was not completely terminated. He retained a key to the front door and spent the night there as ⁴⁶⁰ recently as 5 July 1989.

Starting in January 1989, David Schoene moved in with her in her home. He left the following May to return to his children, but continued to visit her. She told Hammond in June that she was no longer “seeing” Schoene. Hammond did not know that McElroy and Schoene had, in fact, resumed their relationship.

McElroy and Schoene were together on 9 July 1989. They went out to dinner and then returned to McElroy’s home. Schoene left to go to a neighborhood bar, and, during his absence, McElroy received a phone call from Hammond. They discussed their mutual problems.

Hammond told her that he would “come over in a second” if she wanted him. According to Hammond, she said she wished he would, but McElroy denied that she had said so. Schoene returned, and eventually