Justifiable and excusable homicide saw him quietly sitting on the fence, which, when Broach crossed, he helped himself over by putting his hand on the shoulder of Henson. These are the facts as presented by the record before us. Was there malice prepense in this case of homicide, so as to exclude the benefit of clergy within the 23d Henry VIII, Chap. 1? Did Grainger display a cold, deliberate, and wicked conduct?-a heart lost to all social order and fatally bent on mischief? It cannot be believed. He behaved like a timid, cowardly man, was much alarmed, in imminent danger of a violent and instant assault and battery, and was cut off from the chances of probable assistance. That the act was the result of fear hardly admits of doubt. It is equally certain to our minds that Broach only designed to commit a trespass and battery upon the body of Grainger, without intending to kill him. If the jury had believed that Grainger was in danger of great bodily harm from Broach, or thought himself so, then the killing would have been in self-defense. But if he thought Broach intended to commit a battery upon him, less violent, to prevent which he killed Broach, it was manslaughter. 1 Hawk. P. C., Chap. 28, Sec. 23; 1 East C. L., p. 272. The judgment will be reversed, and the cause remanded for another trial." 199. (§ 36.) The homicide appearing to be justifiable or excusable, the person indicted must, upon his not punish- trial, be fully acquitted and discharged. able. NOTE.-Sections 32 and 41, of the Crimes and Punishment Act of 1850, properly belong in the Criminal Practice Act, and the Commission have so placed them. CHAPTER II. MAYHEM. SECTION 203. Mayhem defined. 204. Mayhem, how punishable. 203. (§ 46.) Every person who unlawfully and ma liciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or who cuts out or disables the tongue, puts out an eye, slits the nose, ear, or lip, is guilty of mayhem. NOTE.-The Code has modified the language of the Act of 1856 (Stats. 1856, p. 219), defining mayhem, but the section has not been changed in substance. Mayhem, at common law, was such a bodily injury as would render a man less able in fighting to defend himself or annoy his adversary; but it was not mayhem if the injury only disfigured; upon this distinction, the cutting off, disabling, or weakening a man's hand, or finger, or striking out an eye, or fore tooth, or castrating him, are maims; but the cutting off his ear, nose, etc., are not such at common law.-2 Wharton's Am. Cr. Law, Sec. 1171; 3 Bl. Com., p. 121; 4 id., p. 205; State vs. Danforth, 3 Conn., p. 112. how pun 204. (§ 46.) Mayhem is punishable by imprison- Mayhem, ment in the State Prison not exceeding fourteen ishable.. years. CHAPTER III. KIDNAPPING. SECTION 207. Kidnapping defined. 208. Punishment of kidnapping. ping 207. (§§ 53, 54, 55.) Every person who forcibly Kidnapsteals, takes, or arrests any person in this State, and defined. carries him into another country, State, or county, or who forcibly takes or arrests any person, with a design to take him out of this State, without having established a claim according to the laws of the United States or of this State, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this State, or to be taken or removed therefrom, for the purpose and with the intent to sell such person into slavery or involuntary servitude, or otherwise to employ him for his own use, or to the use of another, without the free Punishment of kidnapping. will and consent of such persuaded person, is guilty of kidnapping. NOTE.-2 Wharton Cr. Law, p. 1211. The term "kidnapping" is, by earlier writers, used to denote the abduction of children only; and this seems its etymological meaning.-See Philips' World of Words; Webst. Dict.; Johns. Dict. Many accurate authorities employ it without respect to the age of the subject; but confine it to an abduction committed with intent to export the person injured out from his own home, State, or country, to another.-See Bell's Dict. Law of Scot.; Bouvier's Law Dict.; Jacobs' Law Dict. Thus, the Revised Statutes of Illinois, Vol. 1, p. 366, Secs. 54, 55, make false imprisonment to consist in a confinement or detention without legal authority, and confine kidnapping to the offense of abducting and sending to another country. In Hadden vs. The People, 25 N. Y., p. 372, it has been lately held that procuring the intoxication of a sailor, with the design of getting him on shipboard, without his consent, and taking him on board in that condition, is kidnapping under the Revised Statutes; and that it is immaterial whether the offender did the acts, or any of them, in person, or caused them to be done. Where the intent and expectation is, in such a case, that the seaman will be carried out of this State, the offense is complete, although the ship be not, in fact, destined to leave the State.-See People vs. Chee Quong, 15 Cal., p. 332. 208. (§ 54.) Kidnapping is punishable by imprisonment in the State Prison not less than one nor more than ten years. CHAPTER IV. ROBBERY. Robbery defined. SECTION 211. Robbery defined. 212. What fear may be an element in robbery. 211. (§ 59.) Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear. NOTE.-Robbery is the felonious and forcible taking of the property of another from his person, or in his presence against his will, by violence, or by putting him in fear.-4 Bl. Com., p. 243; 2 Wharton's Am. Law, Sec. 1695. It is not necessary that the property should belong to the person from whose possession it was forcibly taken. It is requisite, however, that it should belong to some other person than the defendant, for the owner of property is not guilty of robbery in taking it from the possession of the possessor.-People vs. Vice, 21 Cal., p. 344. The taking must be from the person, or in the presence of the party robbed.U. S. vs. Jones, 3 Wash. C. C. R., p. 209; R. vs. Grey, 2 East P. C., p. 708; Com. vs. Snelling, 4 Binney, p. 379; R. vs. Hamilton, 8 C. & P., p. 49. And against his will.-Long vs. State, 12 Geo., p. 293. If "force" is used "fear" is not an essential ingredient of the crime.-McDaniel vs. State, 8 S. & M., p. 401; Com. vs. Snelling, 4 Binney, p. 379; State vs. McCune, 5 R. I., p. 60; 2 Wharton's Cr. Law, Sec. 1698. Instead of "felonious," the N. Y. Code uses the word "wrongful." There the definition, in Sec. 280, is: “Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." In this definition the word "wrongfully" is substituted for "feloniously." Three elements are necessary to constitute the offense of robbery, as it is generally understood: 1. A taking of property from the person or presence of its possessor; 2. A wrongful intent to appropriate it; 3. The use of violence or fear to accomplish the purpose. The first and second of these elements, the third being wanting, constitute simple larceny; the first and third, without the second, amount at most to a trespass; the second and third, without the first, constitute an attempt to rob. 212. The fear which constitutes robbery may be What fear ar Clus either 1. The fear of an unlawful injury, immediate or future, to the person or property of the person robbed, or of any relative of his, or member of his family; or, 2. The fear of an immediate and unlawful injury to the person or property of any one in the company of the person robbed at the time of the robbery. may be an Punishment of robbery. NOTE.-Subd. 1.-2 Wharton's Cr. Law, p. 1699; Long vs. State, 12 Ga., p. 293; R. vs. Winkworth, 4 C. & P., p. 444. 213. (§ 59.) Robbery is punishable by imprisonment in the State Prison not less than one year. NOTE.-Stats. 1856, p. 220, Sec. 6. Adminis tering poison. Assault with intent murder. CHAPTER V. ATTEMPTS TO KILL. SECTION 216. Administering poison. 217. Assault with intent to commit murder. 216. ($ 45.) Every person who, with intent to kill, administers, or causes or procures to be administered, to another, any poison or other noxious or destructive substance or liquid, but by which death is not caused, is punishable by imprisonment in the State Prison not less than ten years. NOTE.-Stats. 1861, p. 588, Sec. 1. 217. ($ 50.) Every person who assaults another to commit with intent to commit murder, is punishable by imprisonment in the State Prison not less than one nor more than fourteen years. NOTE.-Stats. 1855, p. 105, Sec. 2; People vs. Keefer, 18 Cal., p. 636; People vs. Nugent, 4 Cal., p. 341. CHAPTER VI. ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER THAN SECTION 220. Assaults with intent to commit rape. 221. Other assaults. 222. Administering stupefying drugs. |