FALSE IMPRISONMENT.

§ 99. "False Imprisonment is Any Unlawful Restraint of One's Liberty, whether in a place set apart for imprisonment generally or used only on the particular occasion, and whether between walls or not, effected either by physical force actually applied, or by words and an array of such forces. 1 Bish. Cr. L., § 553.

By captain transporting convicts: R. v. Leslie, § 66.

(Tenn. Sup. Ct., 1846.) Mere Arrogant Conduct. The defendant was indicted for an assault and false imprisonment. He was the keeper of a public ferry, and as such had carried over the Chucky river one Rodgers, with his horse and carryall. When over, the defendant demanded of Rodgers ferriage, which the latter said had been paid. The defendant told Rodgers he should not go on until he had paid the ferriage. Some other conversation ensued, when Rodgers paid the ferriage demanded. Rodgers testified on the trial that the defendant had not touched his bridle or his horse; that he made no effort to strike or touch his person or his horse; and that he made no threats of personal violence; but that he was afraid of a difficulty with the defendant. The defendant was found guilty, and appealed. GREEN, J. * Although the defendant did not take hold of the prosecutor, or offer violence to his person, yet his manner may have operated as a moral force to detain the prosecutor. And this appears the more probable as, after the affair was settled, the prosecutor inquired what defendant would have done if he had not paid the ferriage demanded, to which the defendant replied, "he would have put his carryall and horse back into the boat, and taken them across the river again." As this determination existed in his mind, it doubtless was exhibited in the manner of the defendant, and thus operated upon the fears of the prosecutor. Affirmed. Smith v. S., 7 Humph. 43, Mi. 534.

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Robbery, though a kindred offense, is not treated under this head, because it involves larceny also, which is yet to be considered. See post. §§ 146-149.

KIDNAPING.

§ 100. "Kidnaping is a false imprisonment aggravated by conveying the imprisoned person to some other place." 1 Bish. Cr. L., § 553.

That defendant was kidnaped out of the state and brought here for trial: Illinois, § 90; Mahon v. Justice, § 90.

Ker v.

(Tex. Sup. Ct., 1848.) Indictment. After verdict of guilty on an indictment for kidnaping, motion in arrest of judgment was made,

and overruling the motion was held erroneous; because the indictment did not charge an assault on prosecutor, nor that he was taken against his will. The COURT said: "Kidnaping is defined to be, 'the forcible abduction and conveying away of a man, woman or child, from their own country, and sending them to another.' 2 Tom. L. Dic. 335; 4 Bl. Com. 219; 1 East P. C. 430, § 4. This offense is treated as an aggravated species of false imprisonment. Roscoe on Ev. 465, 1 East P. C. 430. And all the ingredients in the definition of the latter offense are necessarily comprehended in the former. These are: 1. The detention of the person. 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment.' 'Unlawful, or false imprisonment consists in such confinement or detention without sufficient authority.' 3 Bl. Com. 127, 1 Tom. L. Dic. 755. These essential elements in the definition of the offense must enter into the description of it in the indictment." Per WHEELER, J. Reversed. Click v. S., 3 Tex. 282, Kn. 203.

MAIM.

§ 101. Defined. "Such hurt of any part of a man's body whereby he is rendered less able, in fighting, either to defend himself or to annoy his adversary, is properly a maim. And therefore the cutting off or disabling or weakening a man's hand or finger, or striking out his eye or foretooth, or castrating him, are said to be maims; but the cutting off his ear or nose, etc., are not esteemed maims, because they do not weaken, but only disfigure him." 1 Hawkins P. C., c. 15, § 1.

(Mass. Sup. Judicial Ct., 1810.) Indictment for Burglary in Breaking and Entering to Cut Off the Ear of Ed. Dixon in his dwelling house at night. The prisoners demurred. PARSONS, C. J. The objection to the indictment is that the facts therein found do not amount to felony. The breaking and entering of a dwellinghouse in the night is not burglary unless it be done with an intent to commit a felony. This position the attorney general has not contested. The question for our decision then is, whether the cutting off the ear of Dixon, of set purpose and of malice aforethought, with the intention to maim and disfigure him, is by our laws a felony; for if it be not a felony, an intention to do it cannot be an intention to commit felony. That the cutting off an ear, maliciously and of set purpose, with the intention to maim and disfigure is not a mayhem by the common law, is not denied; but the attorney general has insisted that the statute of 1804, c. 123, has made the cutting off the ear, with the disposition and intention aforesaid, a mayhem; that mayhem at common law is felony; and that, as a necessary conclu

sion, the cutting off the ear, maliciously and with the intention to maim and disfigure, is by force of the statute a felony. By the ancient common law, mayhem was an injury of a particular nature, constituting a specific offense, the commission of which could be regularly averred by no circumlocution, without the aid of the barbarous verb mahemiare. It consisted in violently and unlawfully depriving another of the use of a member proper for his defense in fighting, and was punished by a forfeiture of member for member, in consequence of which forfeiture it was deemed a felony. If the sufferer sought this satisfaction, or rather revenge, his remedy was by an appeal of mayhem; and the sovereign punished this injury done to his subject by an indictment for a mayhem; and in both the appeal and indictment the offense must be alleged to have been committed feloniously. A punishment of this description could have existed only in a rude state of civil society; and as civilization advanced, the punishment was disused, and the offender made satisfaction by paying pecuniary damages and was punished by his sovereign by fine and imprisonment, in the same manner as in cases of trespass. So long ago was this punishment disused that Staundford, remarking on the statute of 5 H. IV. c. 5, which made the putting out of an eye felony, observe that before that statute it was not felony. He however subjoins a quaere, and refers to Bracton. This was the state of the common law long before and at the time when our ancestors emigrated to this country, bringing with them but a very small part of the common law, defining crimes and their punishment. Mayhem was therefore never deemed by them a felony, but only an aggravated trespass at common law; and as such, the offender was answerable to the party injured in a civil action of trespass, and to the government upon an indictment for a misdemeanor; and no statute provision, during the existence of the colonial and provisional charters, recognizes mayhem as a distinct offense from trespass, or as constituting a specific felony. We are therefore obliged to consider mayhem as no felony by the common law adopted in this state. Prisoners discharged. C. v. Newell, 7 Mass. 245, C. 482.

RAPE.

§ 102. Defined Rape is a man's having unlawful carnal knowledge of a woman without her consent. Another woman or other person physically incompetent as principal in the first degree may be principal in the second degree, or a husband may be principal in the second degree to a rape on his wife by another man. 2 Bish. Cr. L., §§ 1107-1136; 1 Hale P. C. 628; 1 Hawkins P. C., c. 16, § 2; 4 Bl. Com. 210.

Abandonment after attempt is no defense to prosecution for attempt: Glover v. C.. 62. Attempt by boys under 14, see C. v. Green, § 62; Foster v. C., § 62; McKinny v. S., § 62: S. v. Jones, § 62. Resulting in death from venereal disease is murder: R. v. Greenwood. § 63.

(Eng. Central Crim. Ct., 1845.) While Insensible from Drink. Indictment for rape. It was proved, and the jury found, that the prisoner made prosecutrix (13 years old) quite drunk to excite her passion, not to render her insensible, but when she was insensible had intercourse with her. It was contended in behalf of the prisoner that the offense is not rape, because not accomplished by force and against the will of the prosecutrix. After argument before Pollock, C. B., Tindal, C. J., Denman, C. J., Patteson, Williams, Coltman, Coleridge, Wightman, Cresswell, and Earle, JJ., and Alderson, Platt, and Rolfe, BB., judgment was pronounced by PATTESON, J.

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The prosecutrix showed by her words and conduct up to the last moment at which she had sense or power to express her will, that it was against her will that intercourse should take place. And it was by your illegal act alone, that of administering liquor to her to excite her to consent to your unlawful desires, that she was deprived of the power of continuing to express such want of consent. Whatever your original intention was in giving her the liquor, you knew that it was calculated in its natural consequences to make her insensible, and you know also that it had produced that effect upon her at the time you took advantage of her insensibility. Your case, therefore, falls within the description of those cases in which force and violence constitute the crime, but in which fraud is held to supply the want of both. Transported for life. R. v. Camplin, 1 Car. & K. 746, 1 Den. C. C. 89, 1 Cox Cr. Cas. 220, 1 B. & H. 235n, F. 228.

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Drunkenness of defendant is no defense to a prosecution for rape (Burrow's Case, $57); but on a prosecution for assault with intent to rape, it is competent proof to show inability to form any intent: Reagan v. S., § 57.

(Mass. Sup. Judicial Ct., 1870.) Same. GRAY, J. The defendant had been indicted and convicted for aiding and assisting Dennis Green in committing a rape upon Joanna Caton. The single exception taken at the trial was to the refusal of the presiding judge to rule that the evidence introduced was not sufficient to warrant a verdict of guilty. * Green, with the aid and assistance of this defendant, had carnal intercourse with Mrs. Caton, without her previous assent, and while she was, as Green and the defendant both knew, so drunk as to be utterly senseless and incapable of consenting, and with such force as was necessary to effect the purpose. [After reviewing the decisions and legislation on the subject of rape, and referring to R. v. Camplin, above, as the leading case. on this question, his honor continued.] We are, therefore, unanimously of opinion that the crime, which the evidence in this case tended to prove * * was rape. If it were otherwise, any woman in a state of utter stupefaction, whether caused by drunkenness, sudden disease, the blow of a third person, or drugs which she had been persuaded to take even by the defendant himself, would be unprotected from personal dishonor. The law is not open to such

a reproach. Exception overruled. C. v. Burke, 105 Mass. 376, 7 Am. Rep. 531, B. 457, Kn. 199.

(Eng. C. C. R., 1822.) Consent Obtained by Impersonation. Jackson was convicted on an indictment of burglary with intent to rape, on proof that he went into the woman's room and bed as if he was her husband, and was in the act of copulation when she discovered the fraud, and he immediately desisted. The jury found that he entered the house with intent to pass as her husband, not to use force, but to have connection if she did not discover the fraud. On case reserved eight of the judges thought having carnal knowledge of a woman under such circumstances was not rape, and four thought it was. DALLAS, C. J., pointed out forcibly the difference between compelling a woman against her will, when the abhorrence, which would naturally arise in her mind, was called into action, and beguiling her into consent. Several of the eight judges intimated that if the case should occur again they would advise a special verdict. R. v. Jackson, Russell & R. 487, 1 B. & H. 234-n.

(Conn. Sup. Ct. of Errors, 1828.) Same. Information for assault with intent to rape. Defendant was convicted; and he moved in arrest of judgment, contending that the evidence proved rape, if any offense, and the attempt was merged in the greater crime, and conviction on this charge would be no defense to a charge of rape. The facts were that the prosecutor was asleep, being much exhausted by broken rest, did not realize what defendant was doing till he had violated her person, at first thought it was her husband, and as soon as she became thoroughly awake and sensible to the situation sprang from the bed. The motion was denied because an acquittal on the present charge would be a defense to a charge of rape, and that the offense was worse than charged was no reason for not sustaining the conviction. S. v. Shepard, 7 Conn. 54.

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(Tenn. Sup. Ct., 1852.) Same. Appeal from conviction and sentence of death on indictment of three counts: 1, for burglary with intent to steal; 2, for burglary with intent to rape; and, 3, for assault with intent to rape. CARUTHERS, J. It was proved that the prisoner forced the door of the dwelling house of the prosecutor, in which he and his wife were sleeping, about 11 or 12 o'clock at night; that he approached the bed in which they were sleeping and put his hand upon her, which aroused her from sleep, and she gave the alarm, when the prisoner fled, the prosecutor pursuing him with his dogs and gun, until he overtook, shot, and disabled him. The error alleged and relied upon for a new trial is in that part of the judge's charge to the jury, which is in these words: "If the jury believe that the defendant attempted, either by force, or by fraudulently inducing the prosecutor's wife to believe that it was her husband, and thereby to have carnal knowledge of her, that