2

directed to it, the offense is not mayhem.' Disabling the arm of a man by shooting, is a sufficient maiming within the statute. The cutting off, disabling or weakening a man's hand or finger, or striking out an eye3 or foretooth, or castrating him, are maims. At common law the cutting off of a nose, ear or the like was not a mayhem, because the effect was simply to disfigure, not to weaken," but our statute makes these offenses mayhem."

$427. 2. There must be a Malicious Intent to Maim or Disfigure. - This intent will usually be presumed from the act of maiming. It is not necessary where the injury is done in sudden conflict that the defendant should have formed the malicious. intent to maim or disfigure previous to the conflict; it is sufficient that he formed such intent during the conflict.

$428. Defense. It it good defense to an indictment for mayhem that the maiming was necessarily done in self-defense.10

§ 429. Acquittal of the Mayhem and Conviction of a lesser Offense. - Where an indictment for mayhem sufficiently alleges an assault, which it may do without using the word "assault,"" if the proof fails to show a mayhem, the defendant may be convicted of the assault and acquitted of the mayhem.12 One charged with being present, aiding and abetting at a mayhem

1 State v. Abram, 10 Ala., 928.

U. S. v. Scroggins, 1 Hemp., 478.
Chick v. State, 7 Humph., 161.

1 East P. C., 393.

Id.; 3 Chitty Cr. L., 784; Scott v. Com., 6 Serg. & R., 224; State v. Mairs, 1 Coxe N J., 453; State v. Newell, 7 Mass., 248.

R. S., 382, § 207.

'Com. v. Lancake, 1 Yeates, 417; State v. Danforth, 3 Conn., 112; Penn. v. McBirne, Add., 3).

"State v. Evans, 1 Hayw., 231; State v. Crawford, 2 Dev., 425; State v. Gerkin, 1 Ired., 121; contra, Penn. v. McBirne, Add., 30.

State v. Simmons, 3 Ala., 497.

10 Hayden v. State, 4 Blackf., 516; Cockcroft v. Smith, 2 Salk., 642; 1 Ld. Raym., 177; State v. Abram, 9 Ala., 928.

"Brenham v. State, 1 Iowa, 542.

12 Guest v. State, 19 Ark., 405.

may, if the evidence justifies it, be convicted of the assault and battery, merely while the principal of the first degree is convicted of the mayhem.1

12. POISONING.

--

$430. Provisions of the Statute Punishment. "Whoever willfully and maliciously administers, or causes to be administered, or taken by any person, any noxious or destructive substance or liquid with intent to cause the death of such person, or mingles any poison with food, drink or medicine, or willfully poisons any spring, well or reservoir of water, with such intent, shall be imprisoned in the penitentiary not exceeding twenty years.

STATEMENT OF THE OFFENSE OF POISONING WITH INTENT TO KILL.

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said county, feloniously, willfully and maliciously did administer (or “cause to be administered") to G. H., a certain noxious, poisonous and destructive substance called arsenic, with intent thereby then and there feloniously, unlawfully, and willfully with malice aforethought, to cause the death of the said G. H., contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

13. RAPE.

$431. Provisions of the Statute Definition and Punishment. "Rape is the carnal knowledge of a female, forcibly and against her will. Every male person of the age of fourteen years and upwards, who shall have carnal knowledge of any female child under the age of ten years, either with or with

1 State v. Absence, 4 Port., 397.

ร R. S., 388, § 230.

2 It has been held that an indictment which averred, that the defendant feloniously, willfully and maliciously mingled a drachm of deadly poison called belladonna, with the food of a certain woman, with intent thereby feloniously, willfully and of his malice aforethought to kill her, was suffi cient without averring that he knew the belladonna to be a deadly poison, or did the act knowingly, or that the woman was about to eat the food, or that he intended her to eat it. Com. v. Berse, 108 Mass., 487.

out her consent, shall be adjudged to be guilty of the crime of rape. Every person convicted of the crime of rape shall be imprisoned in the penitentiary for a term not less than one year, and may be extended to life.""

§ 432. Continued Emission. "It shall not be necessary to prove emission to convict any person of the crime of rape."

STATEMENT OF THE OFFENSE OF RAPE.

(Commence as in form on page 35) that C. D.," on, etc., at, etc., in the said county, violently and feloniously did make an assault in and upon one G. H., then and there being a female," and her the said G. H. then and there violently and against her will,' feloniously and forcibly did ravish1o and

'R. S., 388, § 237.

" Id., § 238.

of

age Com..

'It is not necessary to allege that the defendant was fourteen years or upwards, nor that the female was not the wife of the defendant. Scannel, 11 Cush., 574; Com. v. Fogerty, 8 Gray, 489; People v. Ah. Yick, 29 Cal., 575; State v. Farmer, 4 Ired., 224; State v. Storkey, 63 N. C., 7.

4

The words "did make an assault" are probably not essential. Reg. v. Allen, 9 Car. & P., 521, 2 Moody, 179; O'Connell v. State, 6 Minn., 279, 285; although without them in case of the failure to prove the rape, the defendant could not be convicted of a simple assault. 2 Bish. Cr. P., § 955.

5

As to a variance between the proof and allegation as to the name of the injured person, see State v. Emeigh, 18 Iowa, 122; ante page 272, note 5.

6 It has been held, where a similar form was used, that the court could and must see that G. H. was a female, without inserting the words "then and there being a female." State v. Hussey, 7 Iowa, 409; State v. Farmer, 4 Ired., 224; Taylor v. Com., 20 Grat., 825; Com. v. Bennet, 2 Va. Cas., 235; Harman v. Com., 12 Serg. & R., 69.

'The allegation "against her will" is essential unless the female is an infant under ten years of age. 2 Stark. Cr. Pl., 409; 3 Chitty Cr. L., 815; 2 Arch. C. P. & Pl., 160; State v. Jim., 1 Dev., 142.

"At common law the word "feloniously" was essential. 3 Chitty Cr. L., 811; Mears v. Com., 2 Grant C., 385; Nevills v. State, 7 Cold., 78; contra, Com. v. Scannel, 11 Cush., 547.

The word "forcibly" should be inserted. To allege that it was done violently will not be sufficient. State v. Blake, 39 Me., 332; contra, Harman v. Com., 12 Serg. & R., 69; Com. v. Fogarty, 8 Gray, 489.

10 Under the English statute using the word "ravish" it was held necessary to use it in an indictment. 1 Hale, 628; 3 Chitty Cr. L., 812; Harman v. Com., 12 Serg. & R., 69; Gonglemann v. People, 3 Park. Cr. R., 15.

carnally know,' contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

STATEMENT OF THE OFFENSE OF RAPE UPON A CHILD UNDER TEN YEARS OF AGE.

(Commence as in form on page 35) that C. D. on, etc., at, etc., in the said county, then and there being a male person of the age of fourteen years and upwards, unlawfully and feloniously did make an assault in and upon one G. H., then and there being a female child under the age of ten years, to wit., of the age of eight years, and her, the said G. H., then and there wickedly, unlawfully and feloniously, did ravish and carnally know, contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

$433. Evidence

1. There must be a Penetration, or the parts of the male must be inserted in those of the female, which is an essential part of the offense and must be proved. But a very slight penetration is sufficient, though it do not break the hymen or destroy the marks of virginity. And in case of a child under ten years of age, or of an idiot, the fact of

1 The words "carnally know" are substantially in the statute, and should be inserted. 1 Hale, 637; 3 Chitty Cr. L., 812.

It is usual to conclude against the form of the statute, etc., but as the of fense was a felony at common law it has been thought to be unnecessary. Barb. Cr. L., 74; 3 Chitty Cr. L., 812; 1 East P. C., 448.

The allegation that the child is under ten years of age is necessary, unless it is alleged that the act was done against her will. Com. v. Sullivan, 6 Gray, 477; Caruth. v. Sugland, 4 Gray, 7; State v. Farmer, 4 Ired., 224.

'The words "against her will" are made unnecessary by statute. R. S., 388, § 237; it was otherwise at common law. Barb. C. L., 75; Fizell v. State, 25 Wis., 364.

The conclusion should be contrary to the form or the statute, for at com. mon law without force, it was not a felony. Barb. Cr. L. 75; People v. Enoch, 13 Wen., 159; ante page 37, note 1.

Hale P. C., 628; Rex v. Jordon, 9 Car. & P., 118; Audley's Case, 3 Howell, State Tr., 401; Fitzpatrick's C., 3 Howell, State Tr., 419; Robertson's Case, 1 Swinton, 93.

V3 Inst., 59; 2 Arch. C. P. & Pl., 162, 163; Reg. v. Hughes, 9 Car. & P., 752; State v. Le Blanc, 3 Brev., 339; 1 Tread., 354; Reg. v. Lines, 1 Car. & K., 393.

1 East P. C. C., 10, §3, 438; Reg. v. McRue, 8 Car. & P., 611; Reg. v. Moody, 190; Rex v. Russen 1 East P. C., 438; Stroud v. Com., 11 Serg. & R., 177; contra, Rex v. Gammon, 5 C. & P., 321; Brauer v. State, 25 Wis., 413.

penetration may be found by the jury from circumstances.' At common law there were some authorities holding that proof of emission in the body was necessary to complete the offense,2 but now by statute this proof is not necessary. So that now it is presumed that evidence of penetration alone is sufficient even though the fact of emission be negatived by the evidence. But this is not entirely clear, for though the statute dispenses with proof of emission it does not say, as the English statute does, the offense is complete without emission.5

8

$434. 2. It must be Proved that the Rape was Done by Force and Against the Will of the Woman upon whom it was Committed, except when committed on a female child under the age of ten years. Where a man by fraud went to bed to a married woman, and she believing him to be her husband, allowed him to have connection with her, this was held not to be a rape. So where the defendant obtained possession of the person of the prosecutrix by fraud and had used no force, it was held that he could not be convicted of rape. In our opinion it would be more in accordance with good morals and good sense for the courts to hold as they have held, that it is as much a rape when effected by a fraud or by stratagem as by force," though it must

1 Id.; State v. Tarr, 28 Iowa, 397.

9

2 2 Arch. C. P. & Pl., 164, 165; 12 Co., 36, 37; 3 Inst., 59; Hill's Case, 1 East P. C., 439; Rex. v. Burrows, Russ. & Ry., 519; State v. Gray, 8 Jones N. C., 170; contra, 1 East P. C., 437; Robertson's Case, 93, 104; Com. v. Thomas, 1 Va. Cases, 307; State v. Sullivan, Add., 143.

R. S., 388, § 237.

42 Bish. Cr. L., 1129.

Id.; Rex v. Russell, 1 Moody & R., 112.

3 Chitty Cr. L., 810; People v. Morrison, 1 Park. Cr. R., 625; Woodin v. People, 1 Park. Cr. R., 464; Lewis v. State, 30 Ala., 54; Kelly v. Com., 1 Grant, Pa., 483.

* R. S., 388, § 237.

8

Reg, v. Saunders, 8 Car. & P., 265; Reg. v. Williams, 8 Car. & P., 286; Rex v. Jackson, Russ. & Ry., 487; Reg. v. Clark, Dears., 397, 29 Eng. Com. L. & Eq., 542, Reg. c. Barrow, Law Rep. 1 C. C., 156; Wyatt v. State, 2 Swan, Tenn., 394; Lewis v. State, 30 Ala., 54; Com. v. Field, 4 Leigh, 648; contra, State v. Shephard, 7 Conn., 54; People v. Metcalf, Wheeler C. C., 381. 0 People v. Barton, 1 Wheeler, C. C., 378.

10

Moody . People, 20 Ills., 319; State v. Shepard, 7 Conn., 54