to move in arrest of judgment, on such ground and in such manner as by law he or they might have done before the passing of this act; anything herein contained to the contrary, notwithstanding." 32 George III. c. 60.

3. Justification.-The justification must be as broad as the libel. Stilwell v. Barter, 19 Wend. 487; Skinner v. Powers, 1 Wend. 451. It is accordingly held, that it is not a sufficient defense to show merely that the matter published was true, without showing it to have been published from "good motives, and for justifiable ends," and vice versa. Barthelemy v. People, 2 Hill, 248; Com. v. Clapp, 4 Mass. 163; Com. v. Blanding, 3 Pick. 304. Evidence that defendant believed the charges contained in the libel to be true, is inadmissible. Com. v. Snelling, 15 Id. 337. Nor is the general bad character of the person against whom the charges are made a good defense. Id. Nor ignorance on the part of the publisher, that the matter is libelous. Curtis v. Mussey, 6 Gray, 261. Nor can a charge of specific acts of bad conduct be justified by proof of other instances not specified in the writing. Barthelemy v. People, 2 Hill (N. Y.), 248. Nor can the defendant justify, by proving that the libelous matter had been a general and currently believed report in the neighborhood. State v. White, 7 Ired. 180; Hampton v. Wilson, 4 Dev. 468. A letter to a woman, containing libelous matter concerning her suitor, can not be justified on the ground that the writer was her friend and former pastor, and that the letter was written at the request of her parents. "The Count Joannes" v. Bennett, 5 Allen, 169. The burden of proving the justification is upon the defendant. Com. v. Bonner, 9 Metc. 410.

252. To sustain a charge of publishing a libel, it is not needful that the words or things complained of should have been read or seen by another. It is enough that the accused knowingly parted with the immediate custody of the libel under circumstances which exposed it to be read or seen by any other person than himself.

1. Publication of Libel.-To enable a party to maintain an action for the publication of a libel, it is necessary that the matter should have been published concerning the plaintiff, and that it should have been so understood by at least some one third person. De Witt v. Wright, 7 Pac. C. L. J. 602.

253. Each author, editor, and proprietor of any book, newspaper, or serial publication, is chargeable with the publication of any words contained in any part of such book, or number of such newspaper or serial.

254. No reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication.

1. Publishing Report of Official Proceedings-Privileged.-A garbled report of judicial proceedings, or a true report to which is added comments and insinuations tending to asperse a man's character, is libelous.

Thomas v. Croswell, 7 Johns. 264; Com. v. Blanding, 3 Pick. 304. A full, fair, and correct account of a trial is a privileged publication, but it should contain nothing in addition to what forms, strictly and properly, the legal proceedings. Stanley v. Webb, 4 Sandf. 21; Edsall v. Brooks, 17 Abb. Pr. 221. See also, Impeachment of Judge Parsons, 1 Cal. 539.

255. Libelous remarks or comments connected with matter privileged by the last section, receive no privilege by reason of their being so connected.

256. A communication made to a person interested in the communication, by one who was also interested, or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is a privileged communication.

257. Every person who threatens another to publish a libel concerning him, or any parent, husband, wife, or child of such person, or member of his family, and every person who offers to prevent the publication of any libel upon another person, with intent to extort any money, or other valuable consideration, from any person, is guilty of a misdemeanor.

TITLE IX.

OF CRIMES AGAINST THE PERSON, AND AGAINST PUBLIC DECENCY AND GOOD MORALS.

CHAPTER I. RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND
SEDUCTION, §§261-267.

II. ABANDONMENT AND NEGLECT OF CHILDREN, §§270-272.
III. ABORTIONS, §§274-275.

IV. CHILD STEALING, $278.

V. BIGAMY, INCEST, AND THE CRIME AGAINST NATURE, $$281-287.

VI. VIOLATING SEPULTURE AND THE REMAINS OF THE DEAD,
$$290-297.

VII. CRIMES AGAINST RELIGION AND CONSCIENCE, AND OTHER
OFFENSES AGAINST GOOD MORALS, §§299-309.

VIII. INDECENT EXPOSURE, OBSCENE EXHIBITIONS, BOOKS, AND
PRINTS, AND BAWDY AND OTHER DISORDERLY HOUSes,
§§311-318.

IX. LOTTERIES, §§319-326.

X. GAMING, §§330-336.

XI. PAWNBROKERS, §§338-343.

XII. OTHER INJURIES TO PERSONS, §§346-367.

CHAPTER I.

RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION.

SECTION 261. Rape defined.

262. When physical ability must be proved.

263. Penetration sufficient.

264. Punishment of rape.

265. Abduction of women.

266. Seduction for purposes of prostitution.

267. Abduction.

261. Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:

1. Where the female is under the age of ten years.

2. Where she is incapable, through lunacy, or any other unsoundness of mind, whether temporary or permanent, of giving legal consent.

3. Where she resists, but her resistance is overcome by force or violence.

4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution; or by any intoxicating narcotic, or anæsthetic substance, administered by or with the privity of the accused. 5. Where she is, at the time, unconscious of the nature of the act, and this is known to the accused.

6. Where she submits, under a belief that the person committing the act is her husband, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce such belief.

1. Rape. This offense is defined by Blackstone to be the carnal knowledge of a woman by force and against her will. 4 Bl. Com. 210. Wharton defines it to be the act of carnal knowledge of a woman without her conscious permission, such permission not being extorted by force or fear of immediate bodily harm. 1 Whart. Crim. L. (8th ed.), sec. 550. It will be perceived that the definition given by the code is much more comprehensive than that given by the common law writers. In the annotated edition thereof, published in 1872, this definition is stated to include, "the various instances which have been adjudged to constitute the offense, with some others which have been held not to fall within the limited definition of the common law authorities, but to which the same penalties ought to be extended." Force is sometimes considered as an essential to this offense. 1 East P. C. 434; Bradley v. State, 32 Ark. 704; but this is not necessary in those cases in which acquiescence is caused by fraud or stupefaction. An indictment should allege, however, that the offense was "forcibly" committed, and in the cases just mentioned, this allegation is considered proved, by proof of pene

tration. Com. v. Fogerty, 8 Gray, 489; State v. Johnson, 67 N. C. 55; 1 Whart. Crim. L. (8th ed.), sec. 551. Force, or the intent to use force, in all cases where acquiescence has not been obtained by fraud or stupefaction, is essential to the offense, and must be averred and proved. 1 Whart. Crim. L. (8th ed.), sec. 550; Taylor v. State, 50 Ga. 79; State v. Hagerman, 47 Iowa, 151; McNair v. State, 53 Ala. 453; Dawson v. State, 29 Ark. 117; Bradley v. State, 32 Id. 704; Smith v. State, 12 Ohio St. 466; State v. Erickson, 45 Wis. 86; People v. Brown, 47 Cal. 447; People v. Royal, 53 Id. 62. Resistance on the part of the woman must also be established; but it is not necessary to show that she used all the resistance in her power, if her resistance was bona fide, and was the utmost according to her lights, that she could offer." 1 Whart. Crim. L. (8th ed.), sec. 557; Com. v. McDonald, 110 Mass. 406; Jenkins v. State, 1 Tex. App. 346; State v. Dohring, 59 N. Y. 374; Mills v. State, 52 Ind. 187. On the trial of an indictment for this offense, it is necessary to prove: 1. Penetration. Any sexual penetration, however slight, is sufficient to complete the crime. See sec. 263. Proof of emission is not necessary. 1 Whart. Crim. L. (8th ed.), sec. 554. There must be specific proof of some penetration, though such proof may be inferred from circumstances aside from the statement of the party injured. Com. v. Beale, 2 Whart. & S. Med. Jurisp., sec. 245; State v. Tarr, 28 Iowa, 397; Brauer v. State, 25 Wis. 413. And, 2. That it was done by force, and against the will of the woman. This element of force, however, as above stated, is not necessary in those cases, where the crime is committed by fraud or stupefaction.

2. Subdivision 1-Female under Ten Years.-The law presumes a female of tender years incapable of consenting to sexual intercourse, and a man who has connection with such a female, although she may have in fact consented thereto, is guilty of rape. 1 Whart. Crim. L. (8th ed.), sec. 558; Dawson v. State, 29 Ark. 120; Stephen v. State, 11 Ga. 225; People v. McDonald, 9 Mich. 150; Hays v. People, 1 Hill (N.Y.) 351; State v. Farmer, 4 Ired. 224; Anschicks v. State, 6 Tex. App. 524. See O'Meara v. State, 17 Ohio St. 515. In Louisiana and Virginia, a female under twelve years of age is considered incapable of consenting to sexual intercourse. State v. Tilman, 30 La. Ann. 1249; Lawrence v. Com. 30 Gratt. 846. At the common law, the age at which she was considered incapable of consenting was ten years and under. State v. Stephen, 11 Ga. 227. It is no excuse that the person accused believed the girl to be over such age, or that she told him that she was. Lawrence v. Com., 30 Gratt. 845. He takes the risk, and if she is under that age, he is guilty. Id.

3. Subdivision 2—Female Incapable of Consenting, through Lunacy, etc.-This provision was no doubt taken from the decision in the case of Reg. v. Fletcher, 8 Cox. C. C. 131, where it was held that rape may le committed, although the carnal knowledge of the woman is not against her will, provided it is accomplished by force, and without her consent. In that case the defendant was convicted of rape, it appearing that he had had carnal knowledge of a girl, aged thirteen years, of imbecile mind, by force, and without her consent, although it did not appear that it was against her will. It is now generally conceded that forcible intercourse with a female, incapable, through imbecility of mind, of giving legal consent, is rape; although she was above ten years of age, and offered no resistance. Queen v. Ryan, 2 Cox C. C. 115; State v. Tarr, 28 Iowa, 397; Stephen v. State, 11 Ga. 227; see State

v. Crow, 10 West L. J. 501; McNamara's case, Oakley, 521, cited in Annotated Penal Code of 1872, sec. 261, n.

4. Subdivision 3-Resistance Overcome by Force or Violence.— This provision, and the first part of the next, embrace the ordinary cases of rape. Resistance is an incident by which consent can be determined; and it is necessary to show that the woman offered such resistance as was in her power. Consent, however reluctant, if free, negatives rape. 1 Whart. Crim. L. (8th ed.) 557; Anschicks v. State, 6 Tex. App. 524; Com. v. McDonald, 110 Mass. 405; Anderson v. State, 41 Wis. 430; People v. Brown, 47 Cal. 447. See generally as to resistance overcome by force. Charles v. State, 6 Eng. 389; Pollard v. State, 2 Iowa, 567; Wyatt v. State, 2 Swans. 394; Lewis v. State, 30 Ala. 54; State v. Blake, 39 Me. 322; Barney v. People, 22 Ill. 160. As to resistance overcome by fear, see Pleasant v. State, 8 Eng. 360; Wright v. State, 4 Humph. 194; State v. Ruth, 21 Kans. 138; Turner v. People, 33 Mich. 364; Reg. v. Wright, 4 F. & F. 967; Reg. v. Day, 9 Car. & P. 722; Reg. v. Hallett, Id. 748; Reg. v. Rulland, 4 F. & F. 495.

5. Subdivision 4-Administering Intoxicating, Narcotic, or Anæsthetic Substance.-The second clause of this subdivision is intended to cover cases where the female is rendered temporarily incapable of giving consent by means of liquor or drugs. In Reg. v. Camplin, 1 Cox C. C. 220; 1 Den. C. C. 89; 1 Car. & Kir. 746, the jury found that the prisoner gave liquor to the female for the purpose of exciting her passions and inducing her consent; it had, however, the effect of rendering her drunk and insensible, in which condition he violated her. This was held to be rape; on the ground that the connection was accomplished without the consent and against the will of the female, which was all that was necessary to constitute the offense. Actual resistance on her part was not necessary to be shown. A number of similar instances of the commission of the offense are referred to in 2 Whart. & S. Med. Jurisp. (3d ed.), secs. 245-267. This clause is not limited to cases in which the stupefying drug is administered with intent to facilitate a rape. Cases in which the drug is administered from proper motives, but the accused afterwards avails himself of the helplessness of the subject to commit the offense, are designed to be included. It is indeed doubtful whether, in the case of Reg. v. Camplin, above cited, a conviction would have been sustained independent of the circumstances, upon which some stress is laid by members of the court, that the liquor was given with an unlawful intent, and that the prosecutrix indicated dissent by refusing the prisoner's solicitations as long as she had the power. See Com. v. Burke, 105 Mass. 376; People v. Stoyell, 54 Me. 24; People v. Quin, 50 Barb. 128.

6. Subdivision 5-Unconscious of the Nature of the Act.-It can but rarely happen that the subject of the offense consciously submits to the act uncompelled, without being aware of its nature; yet some cases of this sort are reported. In Reg. v. Case, 4 Cox C. C. 220, the defendant was a medical practitioner, and the prosecutrix was a young girl placed under his care for medical treatment. She made no resistance to the connection, owing to a belief, from representations of defendant, that she was submitting to medical treatment for the ailment under which she labored: Held, upon an indictment for assault, that the accused was rightly convicted. Her submission to the act, under an impression that it was something necessary to her case, was not such a consent as relieved the defendant from criminal