Appeal shall stay execution. Appeal: proceedings in case of. Appeal: proceedings in case judgment SEC. 16. An appeal by the defendant to the supreme court from a judgment of death shall stay the infliction of that punishment, but the defendant is to be retamed in custody to abide the judgment on the appeal. SEC. 17. When an appeal is taken from a judgment of death it shall be the duty of the clerk of the district court in which the judgment was rendered to give forthwith to the defendant, bis agent, or attorney, a certificate under his hand and the seal of the county, stating that an appeal has been taken in the case, and the sheriff or other officer having the custody of the defendant, must upon the delivery of such certificate to him refrain from the infliction of the punishment of death upon the defendant, and retain him in custody to abide the judgment of the appeal. SEC. 18. When a judgment of death has been affirmed, the supreme court must cause a copy of the entry of judgment to be remitted to the governor, to the end that a warrant of the execuis affirmed by tion may be issued by the governor. The governor shall send supreme court. his warrant of execution by a special messenger, or by mail, to the proper officer, and shall name therein the day and time of execution, but shall not appoint an earlier day than that fixed by the judgment of the district court. The officer receiving the same shall execute the warrant of the governor as therein directed and shall report his action both to the governor and the district court which rendered the original judgment. If for any cause the execution does not take place on the day appointed by the governor, the governor may from time to time appoint another day for the execution until the judgment is carried into effect. Indictments pending shall be prosecuted to judgment under Code, 23849. Repealing clause. Dueling. R. 2 4195. C. '51, 2572. and abetting. R. 4196. C. '51, 2573. SEC. 19. All indictments pending in any court of this state for any crime committed in violation of said section three thousand eight hundred and forty-nine of the code shall be prosecuted to final judgment, and all crimes that have been committed in violation of said section shall be subject to indictment, trial and punishment in the same manner as they would have been had said section not been repealed. SEC. 20. All acts and parts of acts inconsistent with this act are hereby repealed. SEC. 3852. Whoever fights a duel with deadly weapons, and inflicts a mortal wound on his antagonist, whereof death ensues, is guilty of murder of the first degree, and shall be punished accordingly. SEC. 3853. Any person who fights a duel with deadly weapSame; aiding ons, or is present at the fighting of such duel as aid, second, or surgeon, or advises, encourages, or promotes such duel, although no homicide ensue; and any person who challenges another to fight a duel, or sends or delivers any verbal or written message purporting or intended to be such challenge, although no duel ensue, shall be fined in a sum not exceeding one thousand dollars nor less than four hundred dollars, and imprisoned in the penitentiary not more than three years nor less than one year. SEC. 3854. Any person who accepts such challenge, or who Accepting chal- consents to act as a second, aid, or surgeon on such acceptance, or who advises, encourages, or promotes the same, although no duel ensue, shall be punished as prescribed in the preceding lenge. R. 4197. section. C. 51, 2575. SEC. 3855. If any person post another, or in writing or print Posting for not use any repro..chful or contemptuous language to or concerning challenge. accepting another for not fighting a duel, or for not sending or accepting R. 24158, a challenge, he shall be fined not exceeding three hundred dollars nor less than one hundred dollars, and shall be imprisoned in the county jail not more than six months nor less than two months. SEC. 3856. Any person guilty of the crime of manslaughter, Manslaughter. shall be punished by imprisonment in the penitentiary not ex- C. 51, 2576. ceeding eight years, and by fine not exceeding one thousand dollars. Manslaughter is not a degree of murder, but a distinct offense, included, however, in the crime of murder: The State v. White, 45-325, 327; and under an indictment for murder, a defendant may be convicted of manslaughter: See notes to § 3849. The common law definition of manslaughter has not been changed by our statute: The State v. Shelledy, 8-477; The State v. Moore, 25-128. The offense defined: The State v. Abarr, 39-185; The State v. Spangler. 40-365. The careless use of a dangerous and deadly weapon, whereby a person is killed, constitutes manslaughter, although no harm is intended: The State v. Hardie, 47-647, and as to when acciden al killing will be excusable, see The State v. Benham, 23154. R. 4199. disfiguring. SEC. 3857. If any person, with intent to maim or disfigure, Maiming or cut or maim the tongue; cut out or destroy an eye; cut, slit, or R. 4200. tear off an ear; cut, bite, slit, or mutilate the nose or lip; cut off C. 51, § 2577. or disable a limb or any member of another person, he shall be punished by imprisonment in the penitentiary not more than five years, and by fine not exceeding one thousand dollars nor less than one hundred dollars. The offense of maiming and disfiguring necessarily includes an assault and battery, within the mean ing of § 4466: Benham v. The State, C. '51, 2578. SEC. 3858. If any person, with force or violence, or by putting Robbery. in fear, steal and take from the person of another any property R. 1201, that is the subject of larceny, he is guilty of robbery, and shall be punished according to the aggravation of the offense as is provided in the following two sections. To constitute robbery, there must be animus furandi; compelling the payment of money which is due, by threats of violence, is not robbery, but is an offense under $3871: The State v. Hollyway, 41–200. The means used to put in fear need not be such as would put in fear one A sudden snatching from the hand C. 51, 2573. SEC. 3859. If such offender at the time of such robbery is same. armed with a dangerous weapon, with intent, if resisted, to kill R. 4202, or maim the person robbed; or if being so armed he wound or strike the person robbed; or if he has any confederate aiding or abetting him in such robbery present and so armed, he shall be punished by imprisonment in the penitentiary for a term not exceeding twenty years nor less than ten years. C. 51, 2580. SEC. 3860. If such offender commit the robbery otherwise same. than is mentioned in the preceding section, he shall be punished R. 4203, by imprisonment in the penitentiary not exceeding ten years nor less than two years. SEC. 3861. If any person ravish and carnally know any female Rape. of the age of ten years or more, by force an l against her will, or C. 51, 2581. R. ¿ 4291. carnally know and abuse any female child under the age of ten years, he shall be punished by imprisonment in the penitentiary for life or any term of years. The fact of prosecutrix making complaint is proper evidence, but the particulars of such complaint are not: The State v. Richards, 33–420. The force necessary on the one hand, | not conclusive, and the age, etc., of and the resistance required on the prosecutrix is to be considered: The other, to constitute the crime, depend State v. Cross, 12-66. The better upon the relative mental and physi- rule is to admonish the jury as to the cal strength of the parties, and the difficulty of disproving the charge, circumstances surrounding them; and and call their attention to the fact where a female was imbecile, and the whether outcry was made at the prisoner, knowing such fact (which time: The State v. Hagerman, 47– might be inferred from his having 151. had some conversation with her), used some force, and there was nothing to indicate consent on her part, held, that the act would be considered to have been against her will, and that Two or more may be jointly indictin such case, actual opposition or dis-ed for the crime, one being the prinsent need not be shown: The State v. cipal and the others accessories: The Tarr, 28-397; and it seems that a State v. Comstock, 46–265. defendant might be convicted under this section of the crime of rape committed upon a woman so destitute of mind that she was incapable of consent, without proof of any resistance on her part, notwithstanding the provisions of $ 3863: The State v. Atherton, 50-189. It is not necessary to establish the non-consent or force, by proof of outcries or of a struggle, nor need actual penetration be shown by the testimony of the prosecutrix herself. But the jury may say whether, from all the circumstances, the requisite facts are shown: The State v. Tarr, 28397. The crime of rape necessarily includes both a simple assault, and an assault with intent to commit the crime, within the meaning of § 4466: The State v. Vinsant, 49-241. On a trial for rape, defendant may be convicted of an assault with intent to commit the crime, and even though consent is shown at the time of the commission of the act, it may be shown to have been absent at the time of the commission of the assault: The State v. Cross, 12-66; The State v. Atherton, 50-189. Carnal knowledge of a female child under ten years of age, constitutes rape: The State v. Newton, 44-45. Evidence considered and, held, insufficient to justify conviction for the crime: The State v. Tomlinson, 11401. As to the evidence necessary to convict, see § 4560. The absence of any marks of violence, or of outcries, etc., at the time, may be considered as against the evidence of prosecutrix: The State v. Tomlinson, 11-401. Absence of such outeries and complaints tends strongly o rebut the hypothesis of guilt, but is SEC. 3862. If any person take any woman unlawfully and Compelling to against her will, and by force, menace, or duress, compel her to marry him or any other person, or to be defiled, he shall be fined not exceeding one thousand dollars and imprisoned in the penitentiary not exceeding ten years. marry. R. & 4205. edge. No particular amount of force is necessary to constitute the offense of defilement under this section, and it was probably intended to cover cases in which there is no force, excepting that which is constructive, and in which the act is accomplished prin cipally by menace or duress, acting to subdue the will; but it contemplates at least an act against the will. The defendant is not required to show an affirmative act of consent to make out a defense: Pollard v. The State, 2-567. SEC. 3863. If any person unlawfully have carnal knowledge Carnal knowl- of any female by administering to her any substance, or by any other means producing such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, or have such carnal knowledge of an idiot or female naturally of such imbecility of mind or weakness of body as to prevent effectual R. 4206. resistance, he shall, upon conviction, be punished as provided in the section relating to ravishment. See notes to § 3861. carriage of pregnant woR. 2 4221. SEC. 3864. If any person, with intent to produce the miscar- Producing mis riage of any pregnant woman, wilfully administer to her any drug or substance whatever, or, with such intent, use any instrument man. or other means whatever, unless such miscarriage shall be necessary to save her life, he shall be imprisoned in the state prison for a term not exceeding one year, and be fined in a sum not exceeding one thousand dollars. It is not necessary to constitute the crime that the woman should be quick with child, nor, providing there is criminal intent, is it necessary that the substance administered should be such as would pro tuce a miscarriage: The State v. Fitzgerald, 49–269. ty where the drug or other substance It is not a crime under this section male child years. The crime is committed in the counSEC. 3865. If any person take or entice away any unmarried Enticing fefemale, under the age of fifteen years from her father, mother, under fifteen guardian, or other person having the legal charge of her person, 1207. without their consent, for the purpose of prostitution, he shall, C. 51, & 2:51. upon conviction, be punished by imprisonment in the penitentiary for not more than three years, or by fine of not more than one thousand dollars and imprisonment in the county jail not more than one year. and protection, would have "the The fact that defendant believed | who have her wholly under their care and had good reason to believe that the female was over the age of fifteen years, constitutes no delense, if she was in fact under that age: The State v. Ruhl, 8-447. (And as to similar point, see The State v. Newton, 4445.) If the parents are dead, and no guardian has been appointed, the persons with whom the female resides as a member of the family, and years, It is not sufficient to constitute an offense under this section that the accused entice away the female for his own carnal enjoyment, and such enjoyment would not constitute prostitution: Ibid. As to the evidence necessary to convict of this offense, see § 4560. twelve years. SEC. 3866. If any person maliciously, forcibly, or fraudulently Enticing away lead, take, decoy, or entice away any child under the age of child under twelve with the intent to detain or conceal such child from R. 4208. C. '51, its parent, guardian, or any other person having the lawful charge @2585. of such child, he shall be punished by imprisonment in the penitentiary not more than ten years, or by fine not exceeding one thousand dollars, or by both such fine and imprisonment. R. 4209. SEC. 3867. If any person seduce and debauch any unmarried Seduction. woman of previously chaste character, he shall be punished by 51,296. imprisonment in the penitentiary not more than five years, or by fine not exceeding one thousand dollars and imprisonment in the county jail not exceeding one year. To" debauch implies to "have | life, advantages, age, and intelligence carnal knowledge of." (Arguendo): of the parties: The State v. Higdon, Wood v. Mathews, 47-409, 410. 32-262. The kind and extent of seductive arts necessary to constitute the crime, will depend upon the condition in An indictment charging that defendant seduced and debauched, etc., etc., is sufficient, without charging the facts as to the means made use of The fact of courtship is admissible The word "character" is here used in its true sense, as distinguished from reputation, but a female may be of unchaste character without being guilty of any act of sexual intercourse. Obscenity of language, indecency of conduct and undue familiarity with men may serve to indicate the true character. It is for the jury to decide, under all the circumstances, as to the character of the prosecutrix: Andre v. The State, 5-389; Boak v. The State, 5-430. A female who has been unchaste may reform and acquire a chaste character, such as is here referred to: The State v. Carron, 18-372. Evidence that prosecutrix has a bad reputation for chastity is not admissible, but evidence that her reputation in that respect is good may be received in rebuttal of evidence tending to prove acts of lewdness: The State v. Prizer, 49-531; The State v. Shean, 32-88. The State v. Wells, 4-671; and such presumption may be rebutted by pr ven or admitted facts or circumstances in the case: The State r. Bowman, 45-418. It is only the "previously chaste character which can be put in issue, and all evidence of improper conduct after the time of the alleged seduction should be excluded: The State v. Wells, 48–671. Questions as to chastity must clearly refer to a time previous to the seduction: The State v. Deitrick, 51– 467. Where the woman is examined as a witness to prove the seduction, she may, on cross-examination, be asked as to matters which would show a want of chastity previous to such seduction. The question of chastity is directly in issue: The State v. Sutherland, 30-570. Previously chaste character is not essential in a civil action, by an unmarried female, for seduction: See § 2555, and notes. Where, in a prosecution for seduction, prosecutrix testified that she resisted, and defendant overcame such resistance by force, held that the court should have instructed the jury, that if they found such to be the fac, defendant was entitled to an асquittal, the crime, under such facts, being rape, and not seduction: The State v. Lewis, 48-578. The previously chaste character of As to evidence in such cases, see SEC. 3868. If, before judgment upon an indictment, the defenMarriage a bar. dant marry the woman thus seduced, it is a bar to any further R. 2 4210. Kidnapping. C. '51, 2588. Exposing C. '51, 2589. prosecution for the offense. Such a marriage is encouraged by valid as being made under duress, the law, and contracts entered into and will be upheld: Armstrong v. in contemplation thereof are not in- | Lester, 43-159. SEC. 3869. If any person wilfully and without lawful authority, forcibly or secretly confine or imprison any other person within this state against his will; or forcibly carry or send such person out of the state; or forcibly seize and confine or inveigle or kidnap any other person with the intent either to cause such person to be secretly confined or imprisoned in this state against his will, or to cause such person to be sent out of this state against his will, he shall be punished by imprisonment in the penitentiary not more than five years, or by fine and imprisonment at the discretion of the court. SEC. 3870. If the father and mother of any child under the are of six years, or any person to whom such child has been entrusted or confided, expose such child in any highway, street, field, house, or outhouse, or in any other place with intent wholly to abandon it, he or she, upon conviction thereof, shall be pun |
