with intent rape. 220. (§ 50.) Every person who assaults another Assault with intent to commit rape, the infamous crime to commit against nature, mayhem, robbery, or grand larceny, is punishable by imprisonment in the State Prison not less than one nor more than fourteen years. NOTE.-Stats. 1855, p. 105, Sec. 2. assaults. 221. Every person who is guilty of an assault, with Other intent to commit any felony, except an assault with intent to commit murder, the punishment for which assault is not prescribed by the preceding section, is punishable by imprisonment in the State Prison not exceeding five years, or in a County Jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both. tering drugs. 222. Every person guilty of administering to Adminis another any chloroform, ether, laudanum, or other nar- stupefying cotic, anaesthetic, or intoxicating agent, with intent thereby to enable or assist himself or any other person to commit a felony, is guilty of felony. NOTE.-Consol. St. of Canada, p. 955, Sec. 13. CHAPTER VII. DUELS AND CHALLENGES. SECTION 225. Duel defined. 226. Punishment for fighting a duel, when death ensues. ensue. 228. Persons fighting duels, etc., disqualified from holding 229. Posting for not fighting. 230. Duties of officers to prevent duels. 231. Leaving the State with intent to evade laws against duelling. 232. Witness' privilege. Duel Punish- death ensues. Punish- 225. A duel is any combat with deadly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel. 226. Every person guilty of fighting any duel, from which death ensues within a year and a day, is punishable by imprisonment in the State Prison not less than one nor more than seven years. NOTE.-Fighting a duel with fatal results held not to be murder within our statutes, but a special offense under the Act of 1855.-Terry vs. Bartlett, 14 Cal., p. 651. 227. Every person guilty of fighting any duel, although no death or wound ensues, is punishable by 4 death does imprisonment in the State Prison not exceeding one not ensue. year. 228. Every person guilty of fighting a duel, or who sends or accepts a challenge to fight a duel, or who acts as a second therein, is forever disqualified from holding any office, or from exercising the elective franchise in this State. NOTE.-Const., Art. XI, Sec. 2. 229. (§ 43.) Every person who posts or publishes another for not fighting a duel, or for not sending or accepting a challenge to fight a duel, or who uses any reproachful or contemptuous language, verbal, written, or printed, to or concerning another, for not sending or accepting a challenge to fight a duel, or with intent to provoke a duel, is guilty of a misdemeanor. 230. Every Judge, Justice of the Peace, Sheriff, or other officer bound to preserve the public peace, who has knowledge of the intention on the part of any persons to fight a duel, and who does not exert his official authority to arrest the party and prevent the duel, is punishable by fine not exceeding one thousand dollars. the State with intent to evade laws against dueling. 231. Every person who leaves this State with in- Leaving tent to evade any of the provisions of this Chapter, and to commit any act out of this State such as is prohibited by this Chapter, and who does any act, although out of this State, which would be punishable by such provisions if committed within this State, is punishable in the same manner as he would have been in case such act had been committed within this State. privilege. 232. No person shall be excused from testifying Witness' or answering any question upon any investigation or trial for a violation of either of the provisions of this Chapter, upon the ground that his testimony might tend to convict him of a crime. But no evidence given upon any examination of a person so testifying shall be received against him in any criminal prosecution or proceeding. NOTE. The sections relating to duels are founded upon the provisions of an Act of 1855 (Stats. 1855, p. 152, Sec. 1), and of Secs. 43 and 44 of the Crimes and Punishment Act of 1850, and Secs. 293, 294, 300, 301, and 303 of the New York Penal Code. No provision has ever been made for carrying into effect the constitutional provisions on the subject, and although fighting by previous appointment, without the use of deadly weapons, was by the Act of 1850 (Stats. 1850, p. 229) made a felony, yet there was no punishment affixed to the offense of dueling, unless death ensued. The Code supplies these omissions. Secs. 2 and 3 of the Act of 1855, giving remedies by action for injuries, etc., arising from dueling, are inserted in the Civil Code.-See Civil Code, Secs. 3347, 3348. CHAPTER VIII. FALSE IMPRISONMENT. SECTION 236. False imprisonment defined. 237. False imprisonment, how punished. False imprisonment defined. 236. (§ 52.) violation of the False imprisonment is the unlawful personal liberty of another. False imprison 237. (§ 52.) False imprisonment is punishable by ment, how fine not exceeding five thousand dollars, or by impris punished. onment in the County Jail not more than one year, or both. NOTE.-False imprisonment is not a felony.-People vs. Ebner, 23 Cal., p. 158. CHAPTER IX. ASSAULT AND BATTERY. Assault defined. SECTION 240. Assault defined. 241. Assault, how punished. 242. Battery defined. 243. Battery, how punished. 244. Assaults with caustic chemicals. 245. Assaults with deadly weapons. 240. (§ 49.) An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another. NOTE.-Stats. 1856, p. 219, Sec. 5. This is substantially the common law definition.-People vs. Yslas, 27 Cal., p. 630; 2 Bishop's Cr. Law, Sec. 32; 3 Black. Com., p. 120. INTENT TO STRIKE.-An assault has also been said to be an intentional attempt, by violence, to do an injury to the person of another. It must be intentional. If there is no present purpose to do an injury, there is no assault. There must also be an attempt. A purpose not accompanied by an effort to carry into immediate execution falls short of an assault. Thus no words can amount to an assault. But rushing towards another with menacing gestures, and with a purpose to strike, is an assault, though the accused is prevented from striking before he comes near enough to do so.State vs. Davis, 1 Ired. N. C., p. 121; People vs. Yslas, 27 Cal., p. 630. But mere threatening gestures unaccompanied by such a purpose, although sufficient to cause a man of ordinary firmness to believe he was about to be struck, do not constitute an assault. Thus, when the defendant shook his whip at the prosecutor, saying, at the same time: "If you were not an old man I would knock you down." Held, no assault, unless the jury should be satisfied that there was a present purpose to strike.-State vs. Crow, 1 Ired. N. C., p. 375. To the same effect is Commonwealth vs. Eyre, 1 Serg. & R., p. 347. So, where an Embassador exhibited a painting in the window of his house which gave offense to the crowd without, and defendant, among the crowd, fired a pistol at the painting at the very time when the Embassador and his servants were in the window to remove it, but did not intend to hurt any of them, and in fact did not. Held, that there being no intent to injure the person there could be no conviction for an assault.-U. S. vs. Hand, 2 Wash. C. C., p. 435; People vs. McMakin, 8 Cal., p. 547. But threatening another with a weapon, as a means of coercing him to yield to a demand, intending to strike if he refuses, but not to strike if he complies, is an assault, although the other party negotiates and no blow is finally given. It makes no difference that the purpose to commit violence is not absolute but only conditional.-State vs. Morgan, 3 Ired. N. C., p. 186. And, in general, it is an assault to present a pistol which purports to be loaded at another person, so near as would endanger life if it were fired, although the pistol is not, in fact, loaded.-State vs. Smith, 2 Humph., p. 457; Rex vs. Parfait, Lach., p. 23; East. P. C., p. 416; Rex vs. Thomas, Lach., p. 272; East. P. C., p. 417; also, Morgan vs. State, 33 Ala., p. 413, where it is held that the presenting a pistol loaded and cocked, although with the finger on the trigger, and in an angry manner, does not of itself raise a presumption of an intent to murder, but is a common assault. CONSENT. In general, if the party suffering the violence has consented to it, there is no assault. Thus, although a child of tender years cannot legally consent to a rape upon her, yet she may consent to an attempt to commit it; and such an attempt, if committed with her consent, is not an assault.-Rey vs. Cockburn, 3 Cox Cr. Cas., p. 543; Rey vs. Read, 2 Carr. & K., p. 957; 3 Cox Cr. Cas., p. 266; 1 Den. C. C., p. 377; Rex vs. Wehegan, 7 Cox Cr. Cas., p. 145. But there must be actual consent. Mere omission to resist is not enough. Reg. vs. McGavaran, 6 Cox Cr. Cas., p. 64. And where a medical man to whom a girl of fourteen years of age was sent for professional advice had |