witnesses to prove such facts though the woman has not previously been interrogated on the subject.' But upon these questions the authorities are very conflicting, and it is impossible to determine how the courts of this state will finally decide.

$438. What not an Excuse - Partial Consent Acquits. It is, however, no excuse for the party committing the offense of rape that the woman was a strumpet or the concubine of the ravisher, for she is still under the protection of the law and may not be forced. And it will be no excuse that she was first taken with her own consent if she were afterwards forced against her will. If the non-resistence on the part of the woman alleged to have been ravished proceeded merely from her being over-powered, or from her not being able to resist longer; or that from the number of persons attacking her she considered resistance dangerous and absolutely useless, the prisoner ought to be convicted. But if from the whole of the circumstances it appears that although when the alleged ravished woman was laid hold of it was against her will, yet that she did not resist afterwards because she in some degree consented to what was afterwards done to her, the prisoner should be acquitted of the rape and convicted of an assault only.

$439. Circumstances Impairing or Strengthening the Testimony of the Prosecutrix. It is important to keep in view the dif ference between the crime of rape and the sin of seduction, for unfortunately there are some females so frail as to actually seduce or encourage the alleged offender into the commission of the sin of seduction, or allow themselves to be seduced

1 1 Phil. Ev., 4th Ed., 762; R. v. Clark, 2 Stark. R., 244; R. v. Aspinwall, Cit., 3 Stark. Ev., 952; R. v. Robins, 2 Moody & R., 512; People v. Benson, 6 Cal., 221.

2

People v. Jackson, 3 Park. Cr. R., 339.

1 Hale, 629; Pleasant v. State, 8 Engl. Ark., 389; 15 Ark., 624; Rex v.

Barker, 3 Car. & P., 589. Wright v. State, 4 Humph., 194.

1 Hawks P. C. C., 41, §7; 1 East P. C., 445; 4 Black. Com., 213.

1 Hawks P. C. C., 41, §7; 1 East P. C., 444, 4 Black. Com., 213.

Barb. Cr. L., 73; Reg. v. Hallet, 9 Car. & P., 748, ante §435.

though keeping up a show of resistance by saying "no," and meaning yes, and by making such a feeble fight as was calculated to encourage rather then repel the attack, and then from a sense of shame arising from an apprehension of the consequences which may follow the illicit connection, or from the fact that the matter has already become known, or for some other purpose, arraign the supposed offender for the of fense of rape. And as there was no express consent she is enabled to swear without any great stretch of conscience as would be necessary when the whole story was a tissue of falsehood from beginning to end;' and possibly she may do so, really thinking she has actually been forced and raped, while in fact, under the impulse of the moment she substantially consented. It has been well said by Lord Hale, and repeated by nearly all the elementary writers upon criminal law since that, "the charge of rape is an accusation easily made but difficult to be disproved by the party accused, be he ever so innocent; and therefore, though the party ravished be a competent witness, yet the credibility of her testimony must be determined by the circumstances of the facts that concur with the testimony, if the witness be of good fame; if she presently discovered the offense and made pursuit after the offender; if she showed circumstances and signs of injury whereof many are of that nature that only women are the proper examiners; if the place where the act was done was remote from inhabitants or passengers; if the offender fled, these and the like are concurring circumstances which give greater probability to her evidence. On the other hand, if she be of evil fame and stand unsuipported by other evidence; if she conceal the case for any considerable time after she had an opportunity to complain except from fear; if she continues on intimate and friendly terms with the alleged offender after the alleged commission of the

'People v. Hulse, 3 Hill, 316.

'1 Hale P. C., 633-635; State v. Tomlinson, 11 Iowa, 406.

* 3 Greenl. Ev., §212; Black. Com., 213; 1 East P. C., 445; 3 Chitty Cr. L., 812; 3 Stark. Ev., 1267, Roscoe Cr. Ev., 710; 2 Arch. C. P. & Pl., 169.

offense;' if the place where the act is supposed to have been committed was near to persons by whom it was probable that she might have been heard, and yet she made no outery; if she gave a wrong description of the place, or person; if she fixed on a place where it was improbable for a man to have access to her by reason of being in a different place or company about that time, these and the like circumstances afford a strong but not conclusive presumption that the testimony is feigned."

$440. The Husband Cannot be Guilty of Rape upon his own Wife for the matrimonial consent cannot be retracted, but he may be guilty as principal by assisting another person to commit a rape upon his wife."

14. SODOMY.

8441. Provisions of the Statute Punishment. "The infamous crime against nature, either with man or beast, shall subject the offender to be punished by imprisonment in the penitentiary for a term not more than ten years."5

STATEMENT OF THE OFFENSE OF SODOMY WITH A MAN.

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said county, unlawfully and feloniously did make an assault in and upon one G. H., and then and there feloniously, wickedly and against the order of nature had a venerial affair with the said G. H., and then and there feloniously, carnally knew him the said G. H., and then and there feloniously, wickedly and against the order of nature, did commit and perpetrate the detestable, abomnable, and infamous crime against nature of buggery, with the said G. H., then and there being a male person, contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

1 Barb. Cr. L., 72; Barney v. People, 22 Ills., 160; Austine v. People, 51 Ills., 240.

2 State v. Cone., 1 Jones N. C., 18; State v. Cross, 12 Iowa, 66; People v. Morrison, 1 Park. Cr. R., 644.

3 Kennedy v. People, 44 Ills., 283.

1 Hale P. C., 629; Rex v. Castlehaven, 1 St. Tr., 387.

'R. S., 359, § 47.

The allegation of carnal knowledge under the English statute was necessary. 1 Hawks P. C., 357.

STATEMENT OF THE OFFENSE OF SODOMY WITH A BEAST.

(Commence as in form on page 35) that C. D., on, etc., at, etc., in the said county, feloniously, wickedly, and against the order of nature had venerial affair with a certain (cow), and then and there feloniously, wickedly and against the order of nature did carnally know the said (cowo), and then and there feloniously, wickedly, and against the order of nature with the said (cow), did commit and perpetrate the abomnable, detestable and infamous crime against nature of buggery, contrary to the form of the statute in such case made and provided (conclude as in form on page 35).

§ 442. Evidence. The only evidence required is the proof of penetration as in rape. It is not necessary to prove emission to convict any person of the crime against nature. A man and woman, husband and wife,3 two men or a boy, and a man can commit this offense together. All aiding and abetting are guilty as principals. To constitute the offense the act must be in that part where sodomy is committed; therefore the act in a child's month does not constitute the offense." An unnatural connection with an animal of the fowl kind is not a crime against nature, for the reason that a fowl is not a beast within the meaning of the statute.

12 Arch. C. P. & Pl., 185.

2.R. S., 359, § 48.

3

Reg. v. Jellyman, 8 Car. & P., 604.

4 Reg. v. Allen, 1 Den. C. C., 364; 2 Car. & K., 869; Com. v. Snow, 111 Mass., 411.

B

1 Hale P. C., 670; 3 Inst., 59; 1 East P. C. C., 14, § 2.

Rex v. Jacobs, Russ. & Ry., 331.

'1 Russ. on C., 698.

SECTION IV.

OFFENSES AGAINST PROPERTY.

§ 443. Provisions of the Statute as to Arson.

444. Burning to Defraud the Insurer.

445. Burning Barrack Hay, etc.

446. Attempting to Burn.

447. Provisions of the Statute as to Burning One's Own Property

448. Indictment for Arson, etc.

449. Evidence of Burning.

450. Night Time - Presumption from Possession of Goods Confes

sions-Threats-Building not Finished.

451. Evidence of Property in Another, etc.

452. Continued-Occupancy-Possession.

453. Burning One's Own Building.

454. Variance.

455. Evidence that the Burning was Willful and Malicious.

456. Evidence of Intent to Injure Insurer.

457. Evidence of Attempts to Burn.

458. Provisions of the Statute as to Burglary-Definition and Punishment.

459. Attempts to Commit Burglary.

460. Burglar Found in Building.

461. Having Burglars' Tools.

462. Evidence of Breaking and Entry in Night Time.

463. Of Forcibly Breaking and Entering into the Building.

464. Of the Entry.

465. Of the Identity of the Building Described.

466. Of Ownership.

467. Burglars' Tools.

468. Stolen Goods.

469. Evidence of the Willful, Malicious and Felonious Intent

470. View by Jury.

471. Embezzlement, when Larceny.

472. By Officers of Corporations, etc.

473. By Banker, Officer or Agent.

474. Of a Railroad Ticket.

475. By Commission Merchants and Others.

476. By Attorneys and Other Officers.

477. By a Public Officer or his Servant.

478. By Officer in Loaning or Using Public Fund