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them is proper.

Woods v. People, 55 N. Y. 515; 14 Am. Rep. 309; Brennan v. People, 7 How. 171.

In the following casés evidence of previous acts of lewdness and unchastity by the complainant with other men was held admissible: People v. Abbott, 19 Wend. 192; Crossman v. Bradley, 53 Barb. 125; Strang v. People, 24 Mich. 1; Sherwin v. People, 69 Ill. 55; State v. Murray, 63 N. C. 31; Titus v. State, 7 Baxt. 132; People v. Benson, 6 Cal. 221; State v. Reed, 39 Vt. 417; State v. Patterson, 88 Mo. 88; 57 Am. Rep. 374. In the case last cited, the court say: “ The opinion of Judge Cowen in People v. Abbott, 19 Wend. 192, is a very able one reviewing the authorities then extant on the subject. That case has been criticised, but it has been frequently followed, and the ideas it embodies are fast gaining ground, as shown by some of the recent citations I have made. The reasoning of that case I have never seen answered, nor do I believe it can be."

In the following cases evidence of specific unchaste conduct of the prosecu. trix, whether sought to be proved by herself or others, was held inadmissible: People v. Jackson, 3 Park. 391; Shartzer v. State, 63 Md. 149; 52 Am. Rep. 501; State v. Knapp, 45 N. H. 148; Com. v. Regan, 105 Mass. 593; State v. Turner, 1 Houst. 76; State v. Vadnais, 31 Minn. 382; Reg. v. Holmes, L. R., 1 Crown Cas. Res. 334; 12 Cox Crim. Cas. 137; 1 Eng. Rep. 226.

Subdiv. 1. A child within the age designated cannot consent. People v. Stamford, 2 Wheeler C. C. 152; Singer v. People, 13 Hun, 418; affirmed, 75 N. Y. 608; Hays v. People, 1 Hill, 351; Reg. v. Connelly, 26 Upp. Can. Q. B. 323; Stephen v. State, 11 Ga. 225; Clivir v. State, 45 N. J. L. 46; O'Meara v. State, 17 Ohio St. 515; Moore v. State, id. 521; Dauson v. State, 29 Ark. 116; State v. Tilman, 30 La. Ann. 1249; 31 Am. Rep. 236; Com. v. Roosnell, 143 Mass. 32. See, also, 4 Bl. Com. 212; 1 Gabb Crim. Law, 832; Roscoe Crim. Ev. (7th ed.) 289, 851; 19 Eng. Rep. 630.

In People v. Maron, 57 Hun, 367; 32 State Rep. 131, defendant was convicted under an indictment which charged him with rape in two counts, one for sexual intercourse with a female not his wife against her will, and the other for sexual intercourse with a female not his wife, under the age of sixteen years. The evidence tended to establish the acts charged in the second count, but not those in the first. Held, that the conviction was wrong; that the acts charged in the second count did not constitute the crime of rape, and that there was a substantial variance between the crime charged, and the facts proved, which was fatal. See Desty's Crim. Law, § 134a, note d.

This decision is in direct conflict with People v. Connor, 31 State Rep. 168; affirmed, 37 id. 23, where it was held that a charge that “ by the law of this state a man who has sexual intercourse with a female not his wife under sixteen years of age commits rape upon her,” is correct. See, also, 33 id. 790.

Subdiv. 2. See State v. Atherton, 58 Iowa, 189; State v. Crow, 10 West. L. Jour. 501; Bloodworth v. State, 6 Baxt. 614; 32 Am. Rep. 546; Hornback v. State, 35 Ohio St. 277; 35 Am. Rep. 608; Queen v. Barratt, L. R., 2 Cr. Cas. Res. 81; 7 Eng. Rep. 320.

Subdiv. 6. See Reg. v. Fletcher, L. R., 1 Cr. Cas. Res. 391; 10 Cox Crim. Cas. 248; 2 Bish. Crim. Law (6th ed.), S 1126; 1 Monthly Western Jur. 289.

Subdiv. 6. Woman intoxicated to insensibility. People v. Quinn, 50 Barb. 128; Com. v. Burke, 105 Mass. 376; 7 Am. Rep. 531.

Woman asleep. Reg. v. Young, 14 Cox Crim. Cas. 114; 28 Eng. Rep. 548; Reg. v. Mayers, 12 Cox Crim. Cas. 311; 4 Eng. Rep. 559.

$ 279. When physical ability must be proved.- No conviction for rape can be had against one who was under the

age

of fourteen years, at the time of the act alleged, unless his physical ability to accomplish penetration is proved as an independent facty beyond a reasonable doubt.

Prima facie a boy under fourteen years of age is incapable of committing rape. People v. Randolph, 2 Park. 674. Contra, 10 Crim. L. Mag. 89.

But this presumption may be rebutted by proof of the actual commission. People v. Randolph, 2 Park. 674; Wagoner v. State, 5 Lea, 352; 40 Am. Rep. 36; Williams v. Stute, 14 Ohio, 222.

Proof of capacity must be clear. People v. Randolph, 2 Park, 174; Hiltabiddle v. State, 35 Ohio St. 52; 35 Am. Rep. 595.

There is no definite period fixed by law when puberty will be inferred. People v. Croucher, 2 Wheel. Crim. Cas. 42.

$ 280. Penetration sufficient. Any sexual penetration, however slight, is sufficient to complete the crime.

Woodman and Tidy Forensic Med. 640; Bish. Stat. Crimes, S 488. See 80 Am. Dec. 361; People v. Crowley, 102 N. Y. 237; 4 N. Y. Cr. Rep. 168; Brown v. State, 76 Ga. 623; Taylor v. State, 111 Ind. 279; Reg. v. Hughes, 9 C. & P. 752.

$ 281. Compelling woman to marry.-A person who by force, menace or duress, compels a woman against her will to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment for not less than three nor more than ten years, or by a fine of not more than one thousand dollars, or by both.

8 282. Abduction.- A person who,

1. Takes, receives, employs, harbors or uses, or causes, or procures to be taken, received, employed, harbored or used, a female under the age of sixteen years, for the purpose of prostitution; or not being her husband, for the purpose of sexual intercourse; or without the consent of her father, mother, guardian or other person having legal charge of her person, for the purpose of marriage; or,

2. Inveigles or entices an unmarried female of previous chaste character, into a house of ill-fame or of assignation, or elsewhere, for the purpose of prostitution or sexual intercourse; or

3. Takes or detains a female unlawfully against her will, with the intent to compel her by force, menace or duress, to marry him, or to marry any other person, or to be defiled; or,

4. Being parent, guardian or other person having legal charge of the person of a female under the age of sixteen years, consents to her taking or detaining by any person for the purpose of prostitution or sexual intercourse ;

Is guilty of abduction, and punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both.

See Bish. Stat. Crimes (2d ed.), SS 616-624.

In a legal sense “ abduction ” signifies the act of taking and carrying away of a child, ward, wife, etc., either by fraud, persuasion or open violence. Carpenter v. People, 8 Barb. 606; State v. George, 93 N. C. 567.

"Prostitution” is the practice of a female offering her body to the indiscriminate intercourse with men; the common lewdness of a female. People v. Parshall, 6 Park, 134; Carpenter v. People, 8 Barb. 603. See Anderson Law Dict. 839.

On the trial of People v. Stott, 4 N. Y. Cr. Rep. 308, Recorder Smyth charged the jury that: “Under this statute it is just as much a crime to take a female of previous unchaste character under the age of sixteen years either for the purpose of prostitution or for the purpose of sexual intercourse; and under this statute it is also immaterial whether the girl was taken for either of these purposes with or without the consent of her parents or the person having legal custody of her person. The object of the statute is very apparent.

The legis. lature intended to protect females under the age of sixteen years from prostitution or from lending themselves for purposes of sexual intercourse.”

The jury found a verdict of guilty, and on affirming the conviction (5 N. Y. Cr. Rep. 65) Davis, P. J., said: “The crime created by this statute is quite independent of the fact whether there be actual seduction or fornication or forcible intercourse, and the commission of neither of those offenses is material except when the crime is merged in the higher felony of rape. Neither the intercourse nor the marriage need be proved if the purpose of taking be otherwise shown, but either of them may be proved when it has actually occurred as an element or incident tending to establish the purpose." See Kauffman v. People, 11 Hun, 82.

Subdiv. 1. To support a conviction it must be proved that there was a "taking” within the meaning of the act, and that such taking was for the purpose of prostitution. People v. Plath, 100 N. Y. 590.

The word “taking” implies some persuasive inducement on the part of the accused, not a mere permission or allowance to follow a life of prostitution. People v. Plath, 100 N. Y. 590; 53 Am. Rep. 236; 4 N. Y. Cr. Rep. 53.

The word “take” as used in the statute does not imply an actual manual capture of the female, nor need she be taken against her will. People v. Plath, 100 N. Y. 590; Carpenter v. People, 8 Barb. 603.

Mere seduction does not amount to a “taking.” People v. Parshall, 6 Park. 129.

It is not necessary that the accused should in any case use force or practice fraud or deception. People v. Seeley, 101 N. Y. 642; 3 N. Y. Cr. Rep. 225; 37 Hun, 190; People v. Marshall, 59 Cal. 388; Reg. v. Monktelow, 6 Cox Crim. Cas143; People v. Carrier, 46 Mich. 442.

Under the Illinois statute, similar to the above, when a girl, living with her parents, was persuaded or enticed to go to some convenient place from her father's house, in the immediate neighborhood, for the purpose of prostitution, where she remained only for an hour or two at a time, and continued to live with her father, held, that such persuasion or inducement constituted an abduction; that, if such inducements were offered as led the girl to leave her home, that the taking was complete; that the purpose of the taking, conteniplated by the statute, is one existing in the mind of the perpetrator of the offense, and need not be known to the victim. Slocum v. People, 90 Ill. 274.

In People v. Seeley, 37 Hun, 190; 3 N. Y. Cr. Rep. 225; 101 N. Y. 642, the defendant, being acquainted with the prosecutrix, who was between fourteen and fifteen years of age, approached her while she was in the street in front of her house, with another girl about twelve years of age, and, after some con. versation, asked her to go with him into certain grounds near by, which she refused, and defendant walked away. Shortly after he returned and renewed his request to prosecutrix, and asked her to go with him into said grounds and there have sexual intercourse with him, and offered to give her a dollar, which he said she could divide with her companion. The prosecutrix then consented, and defendant directed the way by which they should go, and went himself by another way, and they met at the spot designated, when defendant had sexual intercourse with both girls. They then separated, and met soon afterward on the street, where the accused gave prosecutrix fifty cents, which sho shared with her companion. Held, sufficient to constitute the crime of abduc. tion, under subdivision 1. See People v. Powell, 4 N. Y, (r. Rep. 590; State v. Gordon, 46 N. J. L. 432.

As to whether this section fixes the age of sixteen as “the age of legal con. sent" for females within the meaning of section 1743 of the Code of Civil Pro. cedure, see Moot v. Moot, 37 Hun, 288.

Whether or not the defendant knew that the female was under sixteen years of age at the time, is immaterial. People v. Stott, 4 N. Y. Cr. Rep. 306; affirmed, 5 id. 61.

The person abducting is bound to ascertain the girl's age, and if she turns out to be under sixteen, he must take the consequences. Reg. v. Mycock, 12 Cox Crim. Cas.; 2 Eng. Rep. 177. See Reg. v. Prince, L. R., 2 Cr. Cas. Res. 154; 1 Am. Crim. L. R. 1; 13 Eng. Rep. 385; Reg. v. Packer, 16 Cox Crim. Cas. 57; 37 Eng. Rep. 800; Bish. Stat. Crimes, $ 1022; 1 Bish. Crim. Pr., SS 522, 523.

It is immaterial whether the girl consents or not. People v. Cook, 61 Cal. 479; Reg. v. Kipps, 4 Cox Crim. Cas. 167.

The people cannot in the first instance, and for the purpose of making out a prima facie case, show that girls other than the person claimed to have been abducted were seen to visit defendant's room. People v. Gibson, 4 N. Y. Supp. 170; 6 N. Y. Cr. Rep. 390.

In People v. Sheppard, 5 N. Y. Cr. Rep. 136, the complainant, who had for. merly worn a long dress, with her hair arranged so as to rest upon the top of her head, was put upon the witness stand in short clothes with her hair braided in a child-like way, for inspection by the jury. Held, error.

Sufficiency of charge to jury. See People v. Brandt, 14 State Rep. 419; 110 N. Y. 657.

Subdiv. 2. To sustain an indictment, actual chastity must be shown. General reputation for unchastity is not admissible. Lack of chastity can only be shown by proof of specific acts. Kenyon v. People, 26 N. Y. 203; Kauffman v. People, 11 Hun, 82; Lyons v. State, 52 Ind. 426; 1 Am. Crim. Rep. 28.

She must be shown to have been actually chaste up to the commencement of the acts of the party accused. Carpenter v. People, 8 Barb. 603; Safford v. People, 1 Park. 478.

The evidence of the female enticed, that she was unmarried at the time, is sufficient prima facie proof to bring a case within the statute. People v. Ken. yon, 5 Park, Cr. 254, 289.

In Schnicker v. People, 88 N. Y. 192, it appeared that the prosecutrix, a Ger. man girl, who had been in this country about three weeks, went to the house of the accused, kept as a house of prostitution, not knowing its character, seeking employment as a domestic, and that the accused detained her there, by telling her that if she left she would be arrested, and by keeping the outer door locked; it appeared that the accused told her to go up stairs with a man, which she refused to do, that afterward a man was brought to her room and left there, who defiled her by force. Held, that a finding that she was taken against her will was justified, and that the intent of the accused to compel her by force, menace or duress to submit to defilement was a reasonable inference from the evidence.

It is competent for the prosecutrix to state why she went to the house of the accused, where she was detained against her will, and competent for the people to show that she went there for an innocent purpose. Schnicker v. People, $8 N. Y. 192.

Where the prosecutrix was left in a room, and a man afterward came there and defiled her by force, evidence of what occurred in the room is competent as a part of the res gesta. Id.

$ 283. No conviction on certain testimony.- No conviction can be had for abduction, compulsory marriage, rape, or defilement, upon the testimony of the female abducted, compelled or defiled, unsupported by other evidence.

A conviction cannot be sustained upon the unsupported evidence of the female alleged to have been abducted as to either element constituting the crime, i. e., the taking or the intent. People v. Plath, 100 N. Y. 590; 4 N. Y. Cr. Rep. 53; 53 Am. Rep. 236. See, also, People v. Crowley, 102 N. Y. 234.

Though a corroboration is required, the female is in no sense an accomplice of defendant. People v. Powell, 4 N. Y. Cr. Rep. 586.

The other evidence required by this section may be given by an accomplice of defendant. People v. Powell, 4 N. Y. Cr. Rep. 586.

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