will prevail. By the statutes of some states, where a theft is committed in one state and the goods are carried to another, the state in which the offense originated has exclusive jurisdiction, while a different rule prevails in other states.

CHAPTER XLVI.

CRIMINAL OFFENSES.

We shall not undertake

Every state in the Union has its own way of defining crimes and declaring what punishment shall be inflicted upon offenders. to give a compilation of the various statutory enactments, but shall content ourselves by giving in brief the essential ingredients of such crimes as are recognized and punished in most of the states.

§ 625. Abortion.-Abortion is to cause the miscarriage or premature delivery of a woman. The statutes of some of the states require that the child shall have quickened in the womb at the time of the commission of the crime. The laws of other states declare that the offense may be complete at any time after gestation has begun. The consent of the mother is no defense.

§ 626. Adultery. - Adultery is voluntary sexual intercourse with another man's wife. The woman must be married; she must be another man's wife, and whoever, married or single, has illicit intercourse with her becomes guilty of adultery. Such are the essentials of adultery at common law. In some states the offender who is married is alone held guilty; in other states, where the intercourse is between a married woman and a single man, the woman alone is guilty.

§ 627. Abduction and kidnaping.

Abduction,

though not a common law crime, is made a crime by the statutes of most of the states. It is the act of taking away or detaining a woman against her will, or, in the case of minors, against the will of their parents or other person having lawful charge of them. In a more restricted sense it is the unlawful seizure or detention of a female for the purpose of marriage, concubinage or prostitution. Kidnaping is the unlawful seizure of any person with the intent to remove him to another place. It is a false imprisonment aggravated by the intent to carry the person imprisoned to another place. By the common law kidnaping was the forcible abduction or stealing away of a man, woman or child from their own country and sending them into another.

§ 628. Affray. An affray is the fighting together of two or more persons, either by mutual consent or otherwise, in some public place, to the terror of the people. There must be some stroke given or offered; mere quarreling and the use of threatening words. are not sufficient. If the fighting is in private it is not an affray. Prize fighting as it is now practiced is not an affray, but it is made a misdemeanor by the laws of most of the states of the Union. In Indiana, Kentucky, and some other states, the fighting must be by mutual agreement to constitute an affray; elsewhere it is held that the mere fighting in a public place, with or without mutual consent, constitutes the offense.

§ 629. Arson.-Arson, as defined by Coke, is the malicious and voluntary burning of the house of another by night or by day. There must be an actual

burning of some part of the building, though it is not necessary that any part should be wholly consumed. The burning is sufficient to constitute the offense when any part of the building is charred, but a mere scorching or discoloration is not enough. Formerly the crime of arson was limited to the burning of dwelling-houses, but it now has a wider scope, under the legislation of the various states, so that stables, mills, churches, warehouses, school-houses and other structures may be the subjects of arson. The burning must be malicious and willful, and not merely negligent. The intent to injure is an essential ingredient of the crime, but this intent will be generally presumed.

§ 630. Assault.-A simple assault as defined by Bishop is an unlawful physical force partly or fully put in motion, creating a reasonable apprehension of immediate physical injury to a human being. It is essential that the force intended to be applied should be put in motion. Mere preparation or threats are not an assault. There must be some

act which if not stopped may apparently, or, as some courts hold, actually, produce injury. Striking at another within striking distance though the blow comes short, throwing a missile at another, aiming a gun within gunshot, pointing a pitch-fork at a person within reach, such act coupled with a present intention to do violence would be an assault.

§ 631. Assault and battery.-A battery is the unlawful touching of another in a rude, insolent or angry manner. To spit upon one, to set a dog upon him which touches or bites him, to touch or lay hold of the clothes of another, is sufficient. There must

be intentional physical contact. If this is lacking it can amount to no more than a simple assault.

§ 632. Assault with intent.-An assault with intent is where an intent to commit a specific crime accompanies the assault, as an assault with intent to kill, to rob, to rape or to inflict some serious bodily injury. In order to convict in such cases the specific intent charged against the accused must be proved, and this intent may be inferred from his acts, words and the circumstances surrounding the transaction. The apparent consent of persons who are legally incapable of giving consent is no defense to a charge of assault with intent. In case of assault with intent to commit a crime, there must be according to the rule established in some courts a present ability in the assailant to inflict the injury, but the better opinion is that it is sufficient, if there is a reasonably apparent present ability, so as to create an apprehension that the injury may be inflicted, and cause the person threatened to resort to measures of self-defense.

§ 633. Justification for assault.-No one can be held to be guilty of an unlawful assault who has a sufficient justification or excuse for his act, as where it is in the necessary defense of his person, his property, or the persons to whom he owes the duty of protection, as wife, child or servant. As we have seen, a person who shoots at one, believing him to be another person whom he intends to kill, is guilty of shooting with intent to kill, and shooting or throwing a missile into a crowd is an assault with intent to kill or injure any one who may be in reach of the gun or the missile thrown.