of having ravished other women. Even on a trial for assault with intent to commit a rape, an English judge rejected evidence that, on a previous occasion, the defendant had taken liberties with the same woman. The contrary to this, believed to be the better law, has been adjudged with us. Still, if the prior act amounted only to a solicitation to illicit commerce, it will perhaps ordinarily be inadmissible; as not indicating the purpose to take the further step, and force her. Where successive assaults are virtually one continuing transaction, all have been ruled, in England, to be receivable." Strength. - The relative strength of the man and woman may be taken into the account.6 Harsh Treatment of the female by the defendant, in whose family she was a servant, has been held inadmissible.7 § 971. Conception - Declarations in Travail. "It was formerly supposed, that, if a woman conceived, it was no rape; because that showed her consent. But it is now admitted on all hands that such an opinion has no sort of foundation either in reason or law." Her declarations in travail, if she conceived, are not competent against her ravisher. But § 972. Other Testimony. Any testimony, admissible on gen eral principles, may be brought forward in these cases.10 § 973. Experts. A physician cannot be inquired of whether a ravishment could have been effected in a particular way, if, in the answer, is involved no professional knowledge." § 974. Judge or Jury. The duty of the court to instruct the jury, and their right to judge of the evidence, already explained as to the testimony of the complaining woman, 12 extends also to the entire case.13 1 Rex v. Cole, 1 Russ. Crimes, 5th Eng. ed. 881; The State v. Walters, 45 Iowa, 389; People v. Bowen, 49 Cal. 654. And see Sutton v. Johnson, 62 Ill. 209. See, as to this sort of question, Stat. Crimes, § 679-684. 2 Rex v. Lloyd, 7 Car. & P. 318. 3 Williams v. The State, Humph. 585; The State v. Walters, 45 Iowa, 389. See The State v. Neely, 74 N. C. 425. 583. Thompson v. The State, 43 Texas, Reg. v. Rearden, 4 Fost. & F. 76. 6 The State v. Knapp, 45 N. H. 148; Jenkins v. The State, 1 Texas Ap. 346. 7 People v. Tyler, 36 Cal. 522. The State v. Hussey, 7 Iowa, 409. 11 Cook v. The State, 4 Zab. 843; Woodin v. People, 1 Parker C. C. 464. 12 Ante, § 968. 13 Brown v. People, 36 Mich. 203; The State v. Dancy, 78 N. C. 437; Cato v. III. Questions of Practice. § 975. Duplicity (Assault with Intent). An indictment in two counts, one for a rape and the other for an assault with intent to commit it, is not objectionable as charging two offences.1 Verdict. Whether, on a count for rape, there can be a verdict for an attempt to commit it, or an assault with intent, or a simple assault, will depend on principles sufficiently discussed in other connections. The result differs in our respective States.2 Sentence. Where there were two counts, one for rape and the other for assault with intent, a sentence for "the offence in the indictment charged" was held to be for the rape only; the inferior charge being merged in the superior.3 IV. Attempts. § 976. Already. The general doctrine of the procedure for attempt and assault with intent has been already considered.* Indictment. If the indictment is on a statute, the leading rule is that it must fully cover the statutory terms.5 Thus, — Age. Where, by the statute, the age of the female is a material element, it must be averred.6 The State, 9 Fla. 163; Dawson v. The State, 29 Ark. 116; Garrison v. People, 6 Neb. 274; Turner v. People, 33 Mich. 863. 9 Car. & P. 228. Former Jeopardy, People v. Saunders, 4 Parker C. C. 196; Rex v. Parry, 7 Car. & P. 836. Ante, § 63, 64, 67, 71 et seq., and 1 People v. Tyler, 35 Cal. 553. See particularly 81-83. Vol. I. § 445, 446. 2 The State v. Johnston, 76 N. C. 209; Cato v. The State, 9 Fla. 163; Reg. v. Neale, 1 Car. & K. 591; The State v. McLaughlin, 44 Iowa, 82; Reg. v. Nicholls, 2 Cox C. C. 182; Fox v. The State, 34 Ohio State, 377; Campbell v. People, 34 Mich. 351; Richardson v. The State, 54 Ala. 158; Richie v. The State, 58 Ind. 355. And see further of the verdict, Commonwealth v. Fischblatt, 4 Met. 354; Rex v. Powell, 2 B. & Ad. 75; Barrett v. The State, 1 Wis. 175; Weatherford v. Commonwealth, 10 Bush, 196. Cook v. The State, 4 Zab. 843. As to Continuances, see Reg. v. Guttridge, -- Ante, § 83; Sullivant v. The State, 3 Eng. 400; The State v. Martin, 3 Dev. 329; The State v. Wells, 31 Conn. 210; Commonwealth v. Thompson, 116 Mass. 346; Greer v. The State, 50 Ind. 267; The State v. Jaeger, 66 Misso. 173; Witherby v. The State, 39 Ala. 702; People v. O'Neil, 48 Cal. 257; The State v. Little, 67 Misso. 624; People v. Brown, 47 Cal. 447; Curry v. The State, 4 Texas Ap. 574; Green v. The State, 23 Missis. 509; People v. McDonald, 9 Mich. 150; Dillard v. The State, 3 Heisk. 260; Reg. v. Watkins, Car. & M. 264; Burke v. The State, 5 Texas Ap. 74. Reg. v. Martin, 9 Car. & P. 215. § 977. "Feloniously"-may be required; but this is a question within the general doctrines considered in the first volume.1 § 978. Female Witness. The complaining witness may be impeached and confirmed the same as in actual rape.2 § 979. Evidence of Intent. The proof should cover the entire charge. Especially it should be borne in mind, that, in law, the attempt is not constituted by an assault, and endeavor to procure the woman's consent to an unlawful commerce. The evidence must show that the defendant intended to carry the force, if necessary, to the extent of a consummated rape. But the actual use of so much force is not required. Nor need it appear that the woman made all the resistance essential in rape. 1 Vol. I. § 534-536; Nevills v. The State, 7 Coldw. 78; Dillard v. The State, 8 Heisk. 260. 2 Commonwealth v. Kendall, 113 Mass. 210; Reg. v. Walker, 2 Moody & R. 212; Rex v. Clarke, 2 Stark. 241. Many of the cases cited to the previous discussions of these questions are for the attempt. Doyle v. The State, 5 Texas Ap. 442; Commonwealth v. Fitzgerald, 123 Mass. 408. 4 Commonwealth v. Merrill, 14 Gray, 415; Rex v. Lloyd, 7 Car. & P. 318; Garrison v. People, 6 Neb. 274; The State v. Montgomery, 63 Misso. 296; Dibrell v. The State, 3 Texas Ap. 456; People v. Brown, 47 Cal. 447. 463 Procedure for the Accessorial Offence; II. The Indictment for the Substantive Offence; III. The Evidence. How treated. This offence, which the ancient common law made light,2 is, in all our States, punishable heavily under statutes differing in their terms; and it is never proceeded against at common law. While, therefore, the practitioner cannot avoid consulting carefully the enactments and decisions of his own. State, this chapter, meant for use in all the States, will be limited chiefly to leading doctrines, and the citation of the authorities. I. The Procedure for the Accessorial Offence. § 980. Indictment, &c. In a large part of our States, the statutes permit the prosecuting power to treat the receiver, if it chooses, as an accessory after the fact to the thief; his offence being, under the ancient common law, only a minor misdemeanor. How the indictment and the rest of the procedure against such accessory should be we have already seen. For further as to the form of the indictment and various connected questions, the reader may consult the cases cited in the note.5 1 For the law of this offence, see Crim. monwealth v. Cohen, 120 Mass. 198; Rea Law, II. § 1187 et seq. 2 Crim. Law, II. § 1137. 8 Crim. Law, I. § 699, 700. Ante, § 2, 5, 7-15. 6 Bieber v. The State, 45 Ga. 569; Jordan v. The State, 56 Ga. 92; Com v. Hyman, 2 Leach, 4th ed. 925, 2 East P. C. 782; Rex v. Walkley, 4 Car. & P. 132; The State v. Larkin, 49 N. H. 39; Rex v. Drinkwater, 1 Leach, 4th ed. 15, 2 East P. C. 770; Rex v. Baldwin, 3 Camp. 265, Russ. & Ry. 241, 2 Leach, 4th II. The Indictment for the Substantive Offence. § 981. Permissible. Most of the statutes permit, perhaps some require, this offence to be treated as substantive, not accessorial.2 Thus, Joinder. If the receiving and the substantive offence are either both felony or both misdemeanor,3 counts laying it in these two ways severally may be joined; and doubtless in some of the States this is permissible where the one is felony and the other misdemeanor. Or, both being thus either felony or misdemeanor, the indictment may charge the defendant in one count with the larceny of the thing, and in another with having received it knowing it to be stolen." Form. The indictment must duly cover the statutory terms, and conform to the principles about to be stated. Thus, § 982. Identifying Matter. As in larceny, so in receiving, the transaction is identified by the description of the stolen things, and their ownership; namely, Description. The thing stolen must be described in the same manner as in larceny.9 ed. 928, note; People v. Hawkins, 34 Cal. 181; Commonwealth v. Elisha, 3 Gray, 460; Reg. v. Walford, 8 Car. & P. 767; Reg. v. Casper, 2 Moody, 101, 9 Car. & P. 289; Rex v. Wheeler, 7 Car. & P. 170; Rex v. Austin, 7 Car. & P. 796; Reg. v. Ward, 2 Fost. & F. 19; Reg. v. Martin, 1 Den. C. C. 398, 8 Cox C. C. 447, 2 Car. & K. 950; Commonwealth v. Adams, 7 Gray, 43; Reg. v. Frampton, 8 Cox C. C. 16; Rex v. Hartall, 7 Car. & P. 475; Redman v. The State, 1 Blackf. 429. 1 Crim. Law, I. § 696. Deer, Leigh & C. 240, 9 Cox C. C. 225; The State v. Murphy, 6 Ala. 845; People v. Stein, 1 Parker C. C. 202; Commonwealth v. Lakeman, 5 Gray, 82; The State v. S. L. 2 Tyler, 249; Dyer v. Commonwealth, 23 Pick. 402; Reg. v. Goldsmith, Law Rep. 2 C. C. 74, 12 Cox C. C. 479; Reg. v. Craddock, 2 Den. C. C. 31; O'Connell v. Commonwealth, 7 Met. 460; Swaggerty v. The State, 9 Yerg. 338; The State v. Counsil, Harper, 53; Huggins . The State, 41 Ala. 393; Reg. v. Wilson, 2 Moody, 52; Rex v. Baxter, 2 2 Ib. I. § 699, 700; Rex v. Pollard, 2 Leach, 4th ed. 578, 5 T. R. 83; The State Ld. Raym. 1370. 8 Vol. I. § 444 et seq. v. Phelps, 65 N. C. 450; Sellers v. The State, 49 Ala. 357; Kaufman v. The 4 Rex v. Hartall, 7 Car. & P. 475; Rex State, 49 Ind. 248; Nourse v. The State, v. Austin, 7 Car. & P. 796. 2 Texas Ap. 304; United States v. Mont- • Commonwealth v. Campbell, 103 |