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stake, and even that the state has no interest in the matter. In this the defendant is mistaken. This is no longer a controversy between himself and the two companies or either of them. It is now a controversy between the state of Arkansas and himself, which the state will not permit either one of said companies to determine, at present or in the future, nor will the state acknowledge the validity of any settlement of it, by anything they, both or either of them, have done in the past. Per BUNN, C. J. Reversed on other grounds. Fleener v. S., 58 Ark. 98, 23 S. W. 1, F. 9, Kn. 7.

§ 26. "Has Forgiven the Wrong.”

(Mass. Sup. Judicial Ct., 1888.) Rape Forgiven. Rape Forgiven. Exceptions were alleged on conviction of rape to the refusal of the trial court to instruct the jury "that if said Donovan [prosecutrix], at any time after the act, excused or forgave the defendant, then she ratified the act, and he cannot be convicted in the case. W. ALLEN, J. The court rightfully refused to give the instructions requested. The injured party could not condone the crime by excusing or forgiving the criminal. Exceptions overruled. C. v. Slattery,

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147 Mass. 423, 18 N. E. 399, B. 151.

(Mo. Sup. Ct., 1894.) Mother Forgives Forgery. There was no error in refusing defendant's request to instruct the jury, that the fact that the mother, whose name had been forged by defendant, was willing to condone the offense and pay the obligation, would lessen the crime. Affirmed. S. v. Tull, 110 Mo. 421, 24 S. W. 1010, F. 10.

§ 27. "Entrapped the Offender."

(Mich. Sup. Ct., 1892.) Liquor Bought to Convict. Respondent brings error after conviction of selling liquor in violation of law. MONTGOMERY, J. * Respondent's counsel requested the court to charge the jury that if the prosecution was brought about by Dolbie being hired to procure the liquor for the purpose of prosecuting the respondent and convicting him, the prosecution could not be sustained. It does not appear that any public officers were concerned in sending to the respondent for the liquor in question, and the request was properly refused. [Reversed on another ground.] P. v. Murphy, 93 Mich. 41, 52 N. W. 1042.

Followed in P. v. Curtis, 95 Mich. 212, 54 N. W. 767, in which the conviction was affirmed.

(New York Ct. of App., 1894.) Decoying Extortioner. Defendant was indicted and convicted of attempt to extort by threatening to accuse the principal witness of keeping a house of prostitution,

and promising her that if she would pay him $150 he would not accuse her. Defendant was a private detective employed by a society for prevention of crime; and the principal witness testified that she kept a house of prostitution, and by agreement with the police had been acting as a decoy, trying to induce defendant to receive money under circumstances that would enable the police to arrest for and convict him of extortion. The judgment was reversed on appeal to the general term (73 Hun. 66, 25 N. Y. Supp. 1072, F. 14), and the state appeals. The Penal Code provides: § 552. "Extortion is the obtaining of property from another, with his consent, induced by a wrongful use of force or fear, or under color of official right." § 553. "Fear, such as will constitute extortion may be induced by a threat to accuse a person of a crime. § 34. "An act done with intent to commit a crime, and tending, but failing to effect its commission, is an attempt to commit that crime." § 685. "A person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated." Speaking for the court, EARL, J., said: "The evidence tended to show 蓉 * every element con

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stituting the crime of extortion, except that Mrs. Amos, in paying the money exacted by the defendant, was not actuated by fear. It is urged on behalf of the defendant, that the fact that his threats did not inspire fear, inducing any action on the part of Mrs. Amos, an element essential to constitute the completed crime of extortion, renders it impossible to sustain an indictment and conviction for the lesser crime of an attempt at extortion, and so a majority of the judges constituting the general term held. We are of opinion. that those learned judges fell into error. The threat of the defendant was plainly an act done with intent to commit the crime of extortion, and it tended, but failed, to effect its commission; and therefore the act was plainly within the statute. The general term, in reversing the judgment, should not, therefore, have refused to grant a new trial, and have discharged the defendant." Modified accordingly. P. v. Gardner, 144 N. Y. 119, 38 N. E. 1003, 43 Am. St. Rep. 741, 28 L. R. A. 699.

§ 28. "Consented to the Act."

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(Eng. Assize at Liecester, 1604.) Self-Maiming to Beg. Wright, a young, strong, and lusty rogue, to make himself impotent, thereby to have the more color to beg or to be relieved without putting himself to any labor, caused his companion to strike off his left hand, and both of them were indicted, fined, and ransomed therefor, and that by the opinion of the rest of the justices for the cause aforesaid. Wright's Case, Co. Lit. 127a, B. 145.

(S. Car. Ct. of App., 1833.) Whipping Requested to Avoid Prose

cution. Anderson having stolen some leather, and being found with it, was immediately arrested, apparently without process; whereupon someone, not Beck, asked him if he would not rather be whipped than go to jail. He said he would, and putting his arms around a tree, requested Beck to whip him. Beck hesitated, but finally, saying, "If it will oblige you, I will do it," consented; and gave him a few stripes with a switch. Anderson was then released, but later prosecuted, convicted, and punished. Beck, being prosecuted for this alleged assault and battery, was convicted, and now moves for a new trial. Granted. "Where one gave another license to beat him, there is a case in which it is said the license was held to be void. This may well be. The person receiving the license entertained hostile dispositions towards the other, and, upon being thus licensed, proceeded to carry his revengful purpose into effect. But in the case before us the defendant had no evil disposition towards Anderson, but the contrary." Per HARPER, J. S. v. Beck, 1 Hill 363, 26 Am. Dec. 190, F. 11, Mi. 68.

(Ohio Sup. Ct., 1863.) Boxing. By the COURT. Held, an indictment against A for an assault and battery upon B, is not sustained by evidence that A assaulted and beat B in a fight at fisticuffs, by agreement between them. An assault and battery and an affray are distinct offenses under the statute, punishable by different penalties. Judgment reversed and cause remanded. Champer v. S., 14 Ohio St. 437, Mi. 69.

(Mass. Sup. Judicial Ct., 1875.) Boxing Match. Collberg and Phenix were each indicted and convicted of assault and battery on the other. The evidence showed that defendants had often engaged in wrestling matches, and that on the evening of the day on which the offenses charged were committed, they met at the railway depot, and Collberg bantered Phenix to fight, which he declined to do unless Collberg would wait till he could go home and change his clothes; that this being agreed to, he went and changed, and they together went to a retired place and fought in the presence of 50 or 75 persons till Collberg said he had enough, when both went home; but the next day both looked bruised as if they had been fighting. The court refused to instruct the jury that if what they did was by mutual consent and without anger or malice they must be acquitted, but did instruct them: "That if the defendants were simply engaged in a wrestling match, that being a lawful sport, they could not be convicted of an assault and battery; but if by mutual agreement between themselves, previously made, they went to a retired spot for the purpose of fighting with each other and for the purpose of doing each other physical injury by fighting, with a view to ascertain by a trial of their skill in fighting which was the best man, and there engaged in a fight, each endeavoring to do and actually doing all the physical injury in his power to the

other, and if, in such contest, each did strike the other with his fist for the purpose of injuring him, each may properly be convicted of assault and battery upon the other, although the whole was done by mutual arrangement, agreement, and consent, and without anger on the part of either against the other." To this instruction, and to the refusal of the judge to give the instruction prayed for, the defendants alleged exceptions. ENDICOTT, J. It appears by the bill of exceptions that the parties by mutual agreement went out to fight one another in a retired place, and did fight in the presence of from 50 to 100 persons. Both were bruised in the encounter, and the fight continued until one said that he was satisfied. There was also evidence that the parties went out to engage in and did engage in a "run and catch" wrestling match. We are of opinion that the instructions given by the presiding judge contained a full and accurate statement of the law. [Expressly disapproving of S. v. Beck.] Exceptions overruled. C. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328, B. 148, C. 160.

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(Vt. Sup. Ct., 1884.) Same. Defendant was convicted on indictment for breach of the peace and proof that he engaged with one Bloxham in a boxing match of 4 to 6 rounds, under the Queensbury rules, on the village fair-grounds, before 25 to 100 people, assembled as the result of notice given three or four days in advance, that during the engagement each of the contestants assaulted and beat the other, so that blood flowed from a wound on the head of one and bruises remained visible on the face of one the second day after. Defendant was knocked down, but testified that he went down to avoid the blows of his adversary. "The court did not withdraw from the jury the determination of whether what the evidence tended to show, would constitute a breach of the peace. It left that whole subject to the determination of the jury, with proper instructions on the subject of what would constitute a breach of the peace. The only question reserved was whether the consent of the combatants would prevent their acts from being a breach of the peace. Clearly, such consent would not necessarily give character to their acts and prevent their becoming a breach of the peace. The conduct, -quarreling, challenging, assaulting, tumultuous and offensive carriage, etc., which the statute declares to be a breach of the peace-is capable of being consented to by all the parties guilty of it. Consent, therefore, was not at all determinative of whether the respondent and Bloxham were guilty of a breach of the peace by their acts and conduct." Per ROSS, J. Judgment affirmed. S. v. Burnham, 56 Vt. 445, 48 Am. Rep. 801, F. 12, Kn. 8.

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§ 29. "Want of Consent an Essential Element of Particular Crime."

(Eng. C. C. R., 1840.) Child's Consent. Indictment of three

counts; 1, for carnally knowing and abusing a girl above 10 and under 12 years old; 2, for assault with such intent; and, 3, for assault. Godson, for the prisoner, contended that, supposing the fact to have been done by the consent of the prosecutrix, no conviction could take place on the second and third counts. The learned judge left the question to the jury, who found the fact that the prosecutrix had consented; and he then directed a verdict of guilty on the ground that the prosecutrix was by law incapable of giving her consent to what would be a misdemeanor by statute. But as Godson stated that the point was doubtful and had been otherwise decided before, the learned judge respited the judgment. It appeared to the learned judge clear that if the indictment had charged an attempt to commit the statutable misdemeanor, the prisoner would clearly have been liable to conviction; but the learned judge was not free from doubt as to the present case, in which an assault was charged. This case was considered at a meeting of the judges in Hilary term, 1840, and they all thought that the proper charge was of a misdemeanor in attempting to commit a statutable offense, and that the conviction was wrong. R. v. Martin, 2 Moody 123, 9 Car. & P. 213, B. 146, C. 152.

(Eng. Cent. Crim. Ct., 1870.) Child's Consent to Father. On indictment for having carnal knowledge of a daughter over ten and under twelve, with her consent, and on another count for indecent assault, LUSH, J., instructed the jury, that completed act was essential to convict on the first count, and on the second there could be no conviction if there was consent, as assault excludes consent. "But consent means consent of will, and, if the child submitted under the influence of terror, or because she felt herself in the power of a man, her father, there was no real consent."

Verdict, guilty. R. v. Woodhurst, 12 Cox Cr. Cas. 443, F. 22.

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(Eng. C. C. R., 1850.) Fraudulently Defiled by Physician. Indictment for assault. The defendant was a medical practitioner. Mary Impitt, who was fourteen years old, was placed under his professional care by her parents, in consequence of illness, arising from suppressed menstruation; and on the occasion of her going to his house, and informing him she was no better, he observed, "Then I must try further means with you. He then took hold of her, and laid her down in his surgery, lifted up her clothes, and had carnal connection with her, she making no resistance, believing (as she stated) that she was submitting to medical treatment for the ailment under which she labored. The defendant's counsel, in his address to the jury, contended that the girl was a consenting party; therefore, that the charge of assault could not be sustained. WILDE, C. J. I have no doubt in this case that the direction of the learned recorder was perfectly correct. ** He treats her as competent to consent, and her consent as ground of acquittal; but

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