In Maine and Ohio, as well as in Pennsylvania and other states, the degree is required by statute to be specially found. w In Missouri, by statute, it is only necessary to specify degree where the jury find an offence of minor degree. x

In California, it was once said that a verdict of "guilty" imports a conviction on every material allegation in the indictment, and is therefore a conviction for murder, x1 though now, under statute, the degree must be specified. y

It is clear in New York that there can be a conviction for murder in the second degree under an indictment in the first degree, z and such is the law that usually obtains.

§ 1122. 4th. As a general rule, at common law, there can be no conviction for an assault, under an indictment for murder. In what respect this rule has been varied by statute or otherwise, has been discussed elsewhere. a

§ 1123. 5th. When the jury find the homicide is excusable, the practice in this country is not to find so specially, but to acquit. b

A person may be legally convicted as accessary before the fact of murder in the second degree. d

When a verdict is found against a defendant of "guilty of murder as principal in the second degree," when he is indicted as the absolute actor and perpetrator of the crime, the verdict is

erroneous. e

A verdict in the following words, "We the jury find from the

State, 3 Ohio St. 88; Parks v. State, Ibid. 101; McGee v. State, 8 Mo. 495; State v. Upton, 20 Mo. 397; Ford v. State, 12 Md. 514; State v. Moran, 7 Clarke (Iowa), 236; Tulley v. People, 6 Mich. (2 Cooley) 273; State v. Reddick, 7 Kansas, 143; State v. Redman, 17 Iowa, 329; Hall v. State, 40 Ala. 698; Robertson v. State, 42 Ala. 509 (by statute); Hogan v. State, 30 Wisc. 437; Isbell v. State, 31 Tex. 138; State v. Verrill, 54 Me. 408; State v. Cleveland, 58 Me. 564; State r. Dowd, 19 Conn. 388. Post, § 3196. w State v. Cleveland, 58 Me. 564; Crimes Act, § 39; Dick v. State, 3 Ohio St. 89. Ante, § 928.

z State v. Brannon, 45 Mo. 329. x1 People v. March, 6 Cal. 543; Brown, in re, 32 Cal. 48, and People v. Bonney, 19 Cal. 426.

y People v. Campbell, 40 Cal. 129. z Keefe v. People, 40 N. Y. 348; 7 Abbott Pr. Ca. N. S. 76, and such is the general rule.

a Ante, § 400, 627; post, § 3183. b Wharton on Homicide, 284. d Jones v. The State, 13 Texas, 168.

e Washington v. State, 36 Georg. 222 (Warner, C. J., 1867). See ante, § 1074.

evidence produced that the prisoner is guilty of the murder of B.," is a general verdict. ƒ

That a general verdict of guilty should be taken when there is a variety of counts, stating the mode of death in different ways, is no error. g

f McGuffie v. State, 17 Georgia,

498.

158

g State v. Baker, 63 N. Y. 276 Ante, § 424; post, § 3176.

§ 1124. Rape on High Seas, &c. - [See 6th ed. of this work, $1124.]

[In view of special questions of phraseology, the following statutes are retained in this edition.]

MASSACHUSETTS.

§ 1120. Rape on female of ten or more, and carnal knowledge of child under ten. Whosoever ravishes and carnally knows a female of the age of ten years or more by force and against her will, or unlawfully and carnally knows and abuses a female child under the age of ten years, shall be punished by imprisonment in the state prison for any term of years or for life. a (Stat. 1871, chap. 55.)

NEW YORK.

§ 1127. Rape on female of ten years or more, or carnal knowledge of child under ten. Every person who shall be convicted of rape, either, 1. By carnally and unlawfully knowing any female child under the age of ten years; or, 2. By forcibly ravishing any woman of the age of ten years or upwards, shall be punished by imprisonment in a state prison, not less than ten years. (2 R. S. 663, sect. 22.)

§ 1128. Rape through stupefaction. Every person who shall have carnal knowledge of any woman above the age of ten years, without her consent, by administering to her any substance or liquid, which shall produce such stupor, or such imbecility of mind or weakness of body as to prevent effectual resistance, shall, upon conviction, be punished by imprisonment in a state prison, not exceeding five years. (Ibid. sect. 23. See post, § 1180-1-2, 1191.) a1

PENNSYLVANIA.

§ 1129. Rape and carnal knowledge of female children. — If any

a Under Stat. 1784, c. 66, s. 11, and Stat. 1805, c. 97, one indicted for rape might be found guilty of an assault with intent to commit a rape. Com. v. Cooper, 15 Mass. 187. Under the Rev. Stat. ch. 137, sect. 11, he may be found guilty of an assault and battery. Com. v. Drum, 19 Pick. 497. Under the same provision, where one was indicted for rape upon his own daughter, and the jury found the criminal connection, but negatived the force and violence, he was sentenced for incest. Com. v. Goodhue, 2 Metcalf, 193. An indictment for the abuse of a female child, which avers that the defendant, at a certain time and place, did assault "one B. C., a female child under the age of ten years," and "her, the said B. C. then and there" did abuse, is not

fatally defective, by reason of omitting the words "she then and there being," or other like words, after the first mention of the name of the child; nor by omitting to repeat her age after the second mention of her name. Commonwealth v. Sullivan, 6 Gray. Mass. 477.

Under the Stat. of 1852, c. 250, § 2, by which rape of any female of the age of ten years or more, or abuse of any woman child under the age of ten years, is an indictment prohibited, is sufficient without stating the age of the female. Com. v. Sugland, 4 Gray, Mass. 7. See Com. v. Burke, post, § 1141, 1146.

a1 See People v. Quin, 50 Barbour, 128; Walter v. People, 50 Barbour.

144.

person shall have unlawful carnal knowledge of a woman, forcibly and against her will, or who, being of the age of fourteen years and upwards, shall unlawfully and carnally know and abuse any woman child under the age of ten years, with or without her consent, such person shall be adjudged guilty of felonious rape, and, on conviction, be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement at labor, not exceeding fifteen years. (Rev. Act, Bill I. sect. 91.)

§ 1129 a. Proof of carnal knowledge. It shall not be necessary, in any case of rape, sodomy, or carnal abuse of a female child, under the age of ten years, to prove the actual emission of seed, in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only. (Ibid. sect. 92.)

§ 1129 b. Assault with intent to commit rape. (See sect. 93.)

OHIO.

§ 1131. Rape upon daughter or sister. If any person shall have carnal knowledge of his daughter or sister, forcibly and against her will, every such person to offending shall be deemed guilty of a rape, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor during life. (Act of March 7, 1835, sect. 4; Swan's Stat. 269.)

§ 1132. Rape on woman or female child, or carnal knowledge of female under ten. If any person shall have carnal knowledge of any other woman, or female child, than his daughter or sister c1 as aforesaid, forcibly and against her will, d or if any male person, of the age of seventeen years and upwards, shall carnally know and abuse any female child, under the age of ten years, with her consent; every person so offending shall be deemed guilty of a rape, and, upon conviction thereof, shall be imprisoned in the penitentiary, and kept at hard labor, not more than twenty, nor less than three years. (Ibid. sect. 5.) § 1133. Carnal knowledge of insane woman. If male any seventeen years old and upwards, shall have carnal knowledge of any woman, other than his wife, such woman being insane, he knowing her

el See Howard v. State, 11 Ohio St. R. 328.

d The law presumes that an infant under the age of fourteen years is incapable of committing or attempting to commit the crime of rape; but this presumption may be rebutted by proof that such person has arrived at the age of puberty. Williams v. State, 14 Ohio, 222. In a prosecu

VOL. II.-11

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person,

tion for rape, the declarations made by the injured female as to the transaction, immediately after the offence was committed, may be given in evidence to sustain her testimony given in court, but not as substantive testimony to prove the commission of the offence. Johnson v. State, 17 Ohio, 593. See, also, Laughlin v. State, 18 Ohio, 99.

161