There was sufficient evidence to go to the jury on the question of intent, and they have found that it existed. If the defendant intentionally put out the eye of Kemble, and the jury find that he did, then it follows that he did it with intent to maim or disfigure; for no one will claim that, if a person intentionally puts out the eye of another, he did not intend to maim or disfigure. State v. Clark, 69 Iowa, 537, 28 N. W. Rep. 537; State v. Simmons, 3 Ala. 497.

The statute on which the indictment is found defines the crime therein denounced fully, and the indictment, having used its language, is sufficient. State v. Briley, 8 Port. (Ala.) 491.

THOMAS, J. The plaintiff in error, Herman Gunther, was indicted at a term of the district court of the Sixth judicial district of the territory of Dakota, having and exercising the jurisdiction of the circuit and district courts of the United States, held at Bismarck in March, 1887, for having, on the 26th day of October, 1886, at the military post of Fort Yates, maliciously put out the left eye of one Edmund Kemble, with intent to maim and disfigure him, (the said Kemble.)

The defendant entered a plea to this indictment of not guilty, and at a term of the United States district court held at Bismarck in September, 1887, the cause came on for trial, and resulted in a verdict of guilty. In due time a motion was made for a new trial, which was overruled. Defendant then moved in arrest of judgment, which motion was also denied, and judgment was thereupon pronounced by the court. The case is here on writ of error, and defendant asks that the judgment of the said district court be reversed for the following reasons, to-wit:

1. The judgment ought to be reversed because the court refused to charge the jury that, in order to convict, they must find that the defendant at the time he inflicted the injury charged. in the indictment had a premeditated design or intent to put out the eye of said Kemble, with intent to maim and disfigure him.

2. The judgment ought to be reversed because there was no evidence introduced at the trial tending to show premeditated

design on the part of the defendant to put out the eye of said Kemble, with intent to maim and disfigure him.

3. The judgment should be reversed because the indictment did not state that by reason and means of the facts therein alleged said Kemble was maimed and disfigured.

It will be observed that assignments of error 1 and 2 virtually raise the same issue, and we shall therefore consider them together.

The question presented by them for consideration is whether, by the terms of the United States statute on which the indictment in this case is based, it is necessary to prove premeditated design in order to establish the crime of mayhem as it is defined in said statute.

That such would have been the case at common law, or under the statute of 22 and 23 Charles II., commonly known as the "Coventry Act," there. can be no doubt, because by the terms of said statute premeditated design in the infliction of such an injury is made the essence of the crime. 2 Bl. Comm. (Cooley's Ed.) 206. This statute, with some immaterial modifications, was adopted by the congress of the United States April 30, 1790, and continued in force until the revision of the United States Statutes in 1873, when it was materially amended.

By section 13 of the act of 1790 it was provided that if any person or persons within the places therein mentioned, "on purpose and of malice aforethought, shall unlawfully cut off the ear or ears, or cut out or disable the tongue, put out an eye, slit the nose, cut off the nose, or lip, or cut off or disable any limb or 'member of any person, with intention in so doing to main or disfigure such person, in any of the menners before mentioned, shall," etc. 1 St. at Large, p. 115.

In the revision of this statute in 1873, (section 5348, Rev. St. U. S.,) under which the indictment was found, the words “on purpose and of malice aforethought" were eliminated, and the word "maliciously" substituted.

It seems evident that congress in amending this act by expunging the words "on purpose and of malice aforethought,"

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and inserting in their stead the word "maliciously," intended to change the gravamen of this offense, and that it should no longer be necessary to establish premeditated design in order to constitute this crime.

The word "maliciously," as used in criminal statutes of similar import to the one under consideration, in our judgment means nothing more than that the act should be done voluntarily, intentionally, unlawfully, and without excuse or justification, and, if committed in this manner, would most certainly constitute the offense of mayhem within the meaning of this statute.

It is therefore, in our judgment, wholly immaterial whether it was done with premeditated design or not.

Hence we conclude that the judge of the district court properly refused to charge the jury that they must so find in order to convict the defendant; and it therefore follows, as a matter of course, that it was also immaterial whether there was any evidence at the trial tending to show this fact.

The question of malice is one for the jury, and may be inferred or established by the circumstances under which the injury was inflicted, and may be formed previous to or at the time the act was done.

In order for the jury to return a verdict of guilty, they should have found from the evidence three facts:

1. That the defendant did put out the eye of said Kemble. 2. That it was done maliciously.

3. Done with intent to maim and disfigure him. State v. Hair, 34 N. W. Rep. 893; State v. Jones, 70 Iowa, 505, 30 N. W. Rep. 750; Davis v. State, 22 Tex. App. 45, 2 S. W. Rep. 630.

If there were any evidence introduced at the trial substantially tending to prove these facts, or from which the jury would be justified in inferring them, the verdict cannot be said to be

erroneous.

In the case of State v. Bloedow, 44 Wis. 280, cited by counsel for plaintiff in error, the court say: "If, as has happened, to the disgrace of humanity, one engaged in a fight gouge out

his adversary's eye, the act, unexplained by circumstances, may be sufficient proof of the malicious intent to maim."

We concede that there may be cases where a person's eye is put out by an act of another which could not have been expected by any reasonable person to have resulted from such act, and proof of intent to bring about such a result, independent of the commission of the act itself, would be necessary in order to establish the offense; but in the case at bar there are circumstances proven from which it might be reasonably inferred that the defendant not only inflicted the injury maliciously, but with the specific intention to maim and disfigure the person injured. This question having been properly submitted to the jury, under the charge of the court, they having found that these ingredients existed, we cannot reverse the conviction on any of these grounds. State v. Clark, 69 Iowa, 196, 28 N. W. Rep. 537; State v. Simmons, 3 Ala. 497; Com. v. Newell, 7 Mass. 245.

It is a familiar elementary principle of law that every person is presumed, and must be held, to have intended the natural and probable result of his voluntary acts; and the jury probably, as they had the right to do, took this view of the case in considering all the circumstances surrounding the commission of the offense.

In this case the court instructed the jury that "they must believe from the evidence beyond a reasonable doubt that the defendant at the time of putting out Kemble's eye intended and designed to commit the crime of mayhem by putting out said Kemble's eye, with intent to disfigure and maim him." Having examined carefully the entire charge of the court in this case, we discover no error therein.

The third assignment of error puts in issue the sufficiency of the indictment for the reason that it does not state "that by reason and means of the facts alleged therein said Kemble was maimed and disfigured." The indictment followed the language of the statute, which fully defines and describes the crime therein denounced, and in our judgment is sufficient. The indictment clearly states and charges that the defendant put out the eye of

said Kemble, and that it was done maliciously, and with intent to maim and disfigure him. The proof of these facts would be sufficient to establish the offense, and we cannot see any reason why the indictment should be required to state more. 2 Bish. Crim. Proc. § 856; State v. Briley, 8 Port. (Ala.) 472; Tully v. People, 67 N. Y. 15. The judgment is in all things affirmed. All the justices concurring.

TERRITORY OF DAKOTA, Defendant in Error, v. KEYES, Plaintiff in Error.

1. Rape, Assault with Intent to

Indictment-Sufficiency.

An indictment for assault with intent to rape, charging that K., in and upon one M., did make an assault, and her, the said M., did then and there beat and ill-treat, with the intent to commit the crime of rape upon her, the said M., she, the said M., then being a female under the age of 10 years, held sufficient.

2. Same.

In the case of an indictment for an assault with intent to rape a child under the age of consent. it is not necessary to allege that it was done without her consent, and in such case, the assault being charged, force is implied.

3. Same-Sufficiency of Evidence.

On the trial of an indictment for an assault with intent to rape a child of tender years, it appeared to have been done at the house of the defendant, when they were alone; that all of the facts relating to it were testified to by her; that she was corroborated by a statement of the occurrence made immediately thereafter to the mother, who saw her coming from the house; this being all of the testimony as to the offense, (the defendant not testifying,) and the same having been submitted to the jury on a proper charge, held, the court would not disturb the verdict.

4. Testimony not Objected to-Review.

The appellate court will not consider the question of the admissibility of testimony to which no exception has been taken.

5. Rape, Assault with Intent to-Consent, when Immaterial.

In the case of an assault with intent to rape a child under the age of consent, evidence as to consent is immaterial.