trix, they should convict; as there was no fraud such as is required by the statute. Mooney v. State, 29 Tex. App. 257, 1890. The defendant asked the court to charge: "In order to find the prisoner guilty of an assault with intent to commit rape, you must be satisfied beyond a reasonable doubt that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part." Held error. Porter v. State, (Tex.) 26 S. W. Rep. 626, 1894. Refused. CHAPTER III. SODOMY. In sodomy proof of penetration is re- | POINTS FOR DEFENCE IMPROPERLY quired, & 579. Consent is no defence; but accomplice alone not sufficient to convict, § 580. REFUSED, AND ERRONEOUS CHARGES. (See end of chapter.) In sodomy proof of penetra § 579. SODOMY consists in sexual connection with any brute animal, or in sexual connection, per anum, by a man, with any man or woman. Penetration of the body is essential to the offence,' and so, according to a preponderance of tion authority, is emission. The act committed in a child's required. mouth is not enough.3 The term "sodomy" has been held to be a sufficient description of the offence, and so of the "infamous crime against nature." $580. Consent is no defence; but the evidence of a party consenting to the act is not sufficient to procure a conviction without confirmation; it being held that such party is an accomplice, upon whose unsupported testimony a conviction would not be sustained. In any view, con 1 Steph. Dig. Crim. Law, art. 168; 2 Russ. on Cr. 698; R. v. Jacobs, R. & R. 331. See R. v. Jellyman, 8 C. & P. 604. In Iowa, it has been ruled not to be indictable at common law. Estes v. Carter, 10 Iowa, 400, 1860. It is now indictable in Texas by statute. Ex parte Bergen, 14 Tex. App. 52, 1883; Prindle v. State, 31 Tex. Cr. 551, 1893. As to prior law, see Frazier v. State, 39 Tex. 390, 1873. 'Stafford's Case, 12 Co. Rep. 37; People v. Hodgkin, 94 Mich. 27, 1892, and cases cited therein; see, however, 3 Inst. 59, 1 Hale P. C. 629; and see contra, Com. v. Thomas, 1 Va. Cas. 307. 3 Ibid. See, generally, 1 Hale, 669; 2 Inst. 58, 59; 1 Hawk. P. C. 4; Com. Consent no but accomplice alone cient to defence; not suffi convict. v. Thomas, 1 Va. Cas. 307, 1812; Prindle v. State, 31 Tex. Cr. 551, 1893. State v. Williams, 34 La. An. 87, 1882; Ex parte Bergen, ut supra. 5 People v. Williams, 59 Cal. 397, 1881; State v. Williams, 34 La. An. 87, 1882; Bradford v. State, (Ala.) 16 So. Rep. 107, 1894; Com. v. Dill, 160 Mass. 536, 1894; see supra, ? 15 a. • R. v. Jellyman, 8 C. & P. 604; R. v. Allen, 1 Den. C. C. 364; 2 C. & K. 869; 3 Cox C. C. 270; Com. v. Smith, (Pa.) 14 Luz. Leg. Reg. 362, 1885. 72 Russ. on Cr. (6th Am. ed.) 698. As to corroboration, see Com. v. Snow, 111 Mass. 411, 1873; Com. v. Smith, (Pa.) 14 Luz. Leg. Reg. 362, 1885. sent cannot be regarded as given by a child who, by reason of infancy, is incapable of understanding the nature of the act.1 Attempts to commit the offence, and assaults with intent, are indictable at common law.3 1 Mascolo v. Montesanto, 61 Conn. 50, 1891. See R. v. Lock, supra, ?? 556, 577. Where an adult and a boy of twelve years of age commit an unnatural offence, the adult, being the pathic, may be convicted. R. v. Allen, 1 Den. C. C. 364; T. & M. 55; 2 C. & K. 869; 3 Cox C. C. 270; Mascolo v. Montesanto, 61 Conn. 50, 1891. The allegation, "had a venereal affair," is not essential. Lambertson v. People, 5 Parker C. R. 200, 1861. It is said in Texas not to be enough to charge the offence in general terms. The acts constituting the offence should be charged. State v. Campbell, 29 Tex. 44, 1867. An indictment was held bad in England for uncertainty which charged that the two defendants being persons of wicked and unnatural dispositions, did in an open and a public place un lawfully meet together, with the intent of committing with each other, openly, lewdly, and indecently in that public place, divers nasty, wicked, filthy, lewd, beastly, unnatural, and sodomitical practices, and then and there unlawfully, wickedly, openly, lewdly, and indecently did commit with the other, in the sight and view of divers of the liege subjects, in the said public place there passing, divers such practices as aforesaid. R. v. Rowed, 2 G. & D. 518; 3 Q. B. 180; 6 Jur. 396. See Davis v. State, 3 H. & J. 154, 1810. 2 See R. v. Lock, L R. 2 C. C. 12; 12 Cox C. C. 244; R. v. Eaton, 8 C. & P. 417; R. v. Hickman, 1 Mood. C. C. 34; R. v. Rowed, ut supra; People v. Williams, 59 Cal. 397, 1881; State v. Frank, 103 Mo. 120, 1891; State v. Place, 5 Wash. 773, 1893. 8 See supra, 28 173 et seq. POINTS REQUESTED FOR THE DEFENCE IMPROPERLY REFUSED, AND ERRONEOUS CHARGES. Penetration alone Insufficient. The court charged that the evidence of the offence was complete upon proof of penetration only. Held error. People v. Hodgkin, 94 Mich. 27, 1892. CHAPTER IV. MAYHEM.1 Mayhem is inflicting wound dimin- May be conviction of lesser offence, 2 ity for defence. § 581. MAYHEM, at common law, says Mr. East, is such a bodily hurt as renders a man less able in fighting to defend him- Mayhem self or annoy his adversary; but if the injury be such as is inflicting wound disfigures him only, without diminishing his corporal diminishabilities, it does not fall within the crime of mayhem. ing capacUpon this distinction, the cutting off, disabling, or weak- selfening the man's hand, or finger, or striking out an eye, or fore-tooth, or castrating him, or, as Lord Coke adds, breaking his skull, are said to be maims; but the cutting off his ear or nose are not such at common law. By statutes, however, in England and in some of the United States, the offence has been extended, so as to cover all malicious disabling injuries to the person.3 1 For indictments in mayhem, see 30,1854; U. S. v. Gunther, 5 Dak. 234, Whart. Prec. 192 et seq. 21 East P. C. 393. See R. v. Hagan, 8 C. & P. 167. See Terrell v. State, 86 Tenn. 523, 1888. 31 East P. C. 393; Co. Lit. 126, 288; 3 Inst. 62, 118; Staundf. 38 b; 1 Hawk. c. 44, ss. 1, 2; 2 Hawk. c. 23, 8. 16; 3 Bl. Com. 121; 4 Ibid. 205; State v. Danforth, 3 Conn. 112, 1819; Foster v. People, 50 N. Y. 598, 1872; Godfrey v. People, 63 Ibid. 207, 1875; Scott v. Com., 6 S. & R. 224, 1820; Riflemaker v. State, 25 Ohio St. 395, 1874; Com. v. Hawkins, 11 Bush, 603, 1871; State v. Vowels, 4 Oreg. 324, 1873; Bohannon v. State, 21 Mo. 490, 1855; State v. Brown, 60 Ibid. 141, 1875; Eskridge v. State, 25 Ala. 1888; R. v. Latimer, 54 L. T. 768, 1886; Kitchens v. State, 80 Ga. 810, 1888; State v. Ma Foo, 110 Mo. 7, 1892; Davis v. State, 22 Tex. App. 45, 1886; State v. Cody, 18 Oreg. 506, 1890. The distinction between the English and the New York statute is given in Tully v. People, 67 N. Y. 15, 1876. By 209 of the New York Penal Code of 1882, the offence includes all kinds of mutilation, and 207 prohibits self-mutilation To constitute a mayhem, under the North Carolina statute, by biting off an ear, it is not necessary that the whole ear should be bitten off. It is sufficient if a part only is taken off, provided enough is taken off to alter Intent to § 582. Where maiming is proved to have been done, the inference from facts indicating design is that the act was done on be inferred purpose, and with an intent to maim; and no sudden from facts. rencontre shall be deemed sufficient to excuse the party maiming, unless it be done in necessary self-defence against some great bodily harm attempted by the person mimed, and where there are no other means of preventing it; which facts must be shown by the defence.3 And under the statutes, while a specific intent to inflict the particular injury must be shown, the duration of this intent is not material, if such antecedent specific intent be son, and could only be discovered on close inspection or examination, when attention is directed to it, is not mayhem under the statute of Alabama ; State v. Abram, 10 Ala. 928, 1847; and so substantially in Louisiana; State v. Harrison, 30 La. An. Pt. ii. 1329, 1878. See Bowers v. State, 24 Tex. App. 542, 1888. For the statutory offence of inflicting a wound less than mayhem, see State v. Watson, 41 La. An. 598, 1889. and impair the natural personal ap- ear, which does not disfigure the perpearance, and, to ordinary observation, to render the person less comely. State v. Girkin, 1 Ired. 121, 1840. In an indictment for cutting off an ear in that State, it need not be alleged whether it was the right or the left ear. State v. Green, 7 Ibid. 39, 1846. In an indictment under the same statute, an intent to disfigure is prima facie to be inferred from an act which does in fact disfigure, unless that presumption be repelled by evidence on the part of the accused of a different intent, or at least of the absence of the intent mentioned in the statute. State v. Girkin, 1 Ibid. 121, 1840; State v. Jones, 70 Iowa, 505, 1886; Terrell v. State, 86 Tenn. 523, 1888; State v. Hair, 37 Minn. 351, 1887. It is not necessary in such case to prove malice aforethought, or a preconceived intention to commit the mayhem. Ibid.; People v. Wright, 93 Cal. 564, 1892. The putting out an eye is a mayhem at common law. Chick v. State, 7 Humph. 161, 1846; Com. v. Reed, 3 Amer. Law Jour. 140, 1850. And an indictment under the 55th section of the Tennessee Penal Code, for putting out an eye, must aver that the party was thereby "maimed." Chick v. State, 7 Humph. 161, 1846. The biting off a small portion of the 1 State v. Simmons, 3 Ala. 497, 1842; State v. Girkin, 1 Ired. 121, 1840; U. S. v. Gunther, 5 Dak. 234, 1888; Davis v. State, 22 Tex. App. 45, 1886. Specific intent to maim is not necessary. Terrell v. State, 86 Tenn. 523, 1888. 2 State v. Danforth, 3 Conn. 112, 1819; State v. Evans, 1 Hayw. 325, 1796; State v. Crawford, 2 Dev. 425, 1830; People v. Wright, 93 Cal. 564, 1892; Crane v. Com., (Ky.) 1 S. W. Rep. 880, 1886. In New York, however, lying in wait, or some other act showing premeditation, must be proved. Godfrey v. People, 63 N. Y. 207, 1875. As to New York, see, also, State v. Hair, 37 Minn. 351, 1887. 3 State v. Skidmore, 87 N. C. 509, 1882. See State v. Hair, 37 Minn. 351, 1887. |