in the indictment it must be proved-6 Bush, 436, and this will be sufficient without actual force-1 Duvall, 150; 58 Mo. 581. Any threat calculated to produce terror is sufficient-12 Ga. 293; 2 East P. C. 734; as threatening to take and destroy one's child-2 East P. C. 734; or threatening to destroy one's house--2 Last P. C. 731; or threatening to charge one with an unnatural crime-12 Ga. 293 Humph. 45; 1 Leach, 139; id. 193; Russ. & R. 146; Moody C. C 261 ever where the fear is only as to loss of character-1 Parker Cr. R. 189:1 Leach, 273; Russ. & R. 375; 2 East P. C. 231.

213. Robbery is punishable by imprisonment in the. State prison not less than one year.

CHAPTER V.

ATTEMPTS TO KILL.

§ 216. Administering poison.

§ 217. Assault with intent to commit murder.

216. Every person who, with intent to kill, administers, or causes or procures to be administered, to another, any poison or other noxious or destructive substance or liquid, but by which death is not caused, is punishable by imprisonment in the State prison not less than ten years.

Administering poison.-Poison means any substance which by its own inherent qualities is capable of destroying life. "Noxious or destructive substance or liquid," includes substances which act on the system mechanically, so as to destroy life-53 Cal. 147. Where defendant was charged with administering a large quantity of a certain deadly poison called red oxide of mercury, is sufficient charge under section-54 Cal. 54.

217. Every person who assaults another, with intent to commit murder, is punishable by imprisonment in the State prison not less than one nor more than fourteen years.

Assault with intent to murder.-Every ingredient of murder except death, must be present-52 Ga. 88; S. C. 1 Am. Cr. R. 246. It is the intent unlawfully and maliciously to kill which constitutes the offense49 Miss. 17; S. C. 1 Am. Cr. R. 249; 25 Mo. 338; the intent is an essential ingredient-18 Cal. 636; 37 Ga. 31; 33 Ala. 413; and must be a specific felonious intent-53 Ala. 29; 49 Miss. 17; S. C. 1 Am. Cr. R. 249; 3 Heisk. 420; S. C. 1 Green C. R. 696; existing at the time of the assault-3 Tex. Ct. App. 316; id. 470. Malice is an essential ingredient, but not malice in fact-18 Cal. 636; 45 Ala. 43; 51 Ga. 402. If A., intending to murder B., shoots C., supposing C. to be B., and wounds C., he is guilty of assault with intent to murder-38 Cal. 141. An assault with intent to murder is a felony, and is so made by statute-12 Ala. 458; 3 Colo. 68; 15 Fla. 635; 6 Baxt. (Tenn.) 580; see 4 Parker Cr. R. 187. It includes an aggravated assault-60 Ala. 441; 4 Tex. Ct. App. 140; 6 Mich. 287; 5 Parker Cr. R. 102; or assault with a deadly weapon, with intent to do bodily harm-49 Cal. 226; S. C. 1 Am. Cr. R. 539; 5 Cal. 134; 30 id. 217; or an assault and battery, or a common assault-51 Iowa, 72; 60 Ala.441; 29 Mo. 419; 18 Ala. 432; 28 id. 693; 50 id. 391; 33 Mich. 300; S. C. 1 Am. Cr. R. 244; 2 Allen, (N. B.) 14; 24 Up. Can. C. P. 106; and a party charged with this offense may be convicted of a lesser offense-44 Cal. 94; 59 Ala. 1; 58 Ind. 293; 2 Tex. Ct. App. 84; 3 id. 138; as, of an assauit with a deadly weapon, and the verdict be for a misdemeanor only-5 Cal. 134; 6 id. 562; 30 id. 218; 40 id. 427; 44 id. 581; 49 id. 229; 8 Nev. 312; see 45 Cal. 282. See post, § 245.

Conspiracy to kill-see 52 Cal. 251.

CHAPTER VI.

ASSAULTS WITH INTENT TO COMMIT FELONY, OTHER THAN ASSAULTS WITH INTENT TO MURDER.

§ 220. Assault with intent to commit rape.

§ 221. Other assaults.

§ 222. Administering stupefying drugs.

220. Every person who assaults another with intent to commit rape, the infamous crime against nature, mayhem, robbery, or grand larceny, is punishable by impris onment in the State prison not less than one nor more than fourteen years.

Assault to commit rape.-An assault implies force and resistance, so there can be no assault on a consenting female-47 Cal. 450; 11 Nev. 255; S. C. 21 Am. Rep. 754; 32 N. Y. 528; 54 Ala. 158; 9 Car. & P. 215; 10 Cox C. C. 114; 12 id. 180. There must be actual attempt with force, and against the consent of the female-30 Ala. 54; 22 Wis. 580; but the charge may be sustained when the person assailed was incapable of giving consent, as from infancy-76 N. C. 209; Law R. 2 C. C. 10; see 11 Nev. 255; or from idiocy or mania-26 Up. Can. Q. B. 323; or where acquiescence was procured by fraud-3 Ark. 360; 53 Ala. 453; 29 Ark. 116: 32 id. 704; 11 Ga. 225; 50 Barb. 144; 14 Gray, 415; 47 Iowa, 151; 4 Leigh, 648; 23 Mich. 356; 12 Ohio St. 466; 22 Wis. 580; 45 id. 86; Law R. 1 C. C. 156; id. 2 C. C. 10; 8 Car. & P. 286; 1 Car. & K. 415; 4 Fost. & F. 967; see 2 Cox C. C. 443. See Desty's Crim. Law, title RAPE. In case of young girls it is sufficient if their persons were indecently interfered with without their assent--18 Hun, 330; 13 id. 418; 1 Hill, 351; and even resistance is no defense when the defendant is a schoolmaster, and the person assailed is his pupil-Russ. & R. 130; 6 Cox C. C. 64; 9 Car. & P. 722; or where a medical practitioner unnecessarily strips a female patient-1 Moody C. C. 19.

Liability of parties.-All persons present, aiding and assisting, are principals-24 Mich. 1; but they must aid and assist-45 Cal. 293; and either a boy under fourteen, or a husband, may be liable as aiding and abetting-id.; 24 Mich. 1; 2 Allen, 163; 12 Mod. 340; 8 Car. & P. 736; see 74 Mass. 489. A person cannot be convicted on the uncorroborated testimony of the woman-51 Cal. 371; S. C. 2 Am. Cr. R. 590; 46 Cal. 540; 6 id. 221; 44 Iowa, 82. But see 29 Conn. 389. An indictment charging this offense need not strictly follow the language of the statute; words conveying the same meaning may be employed-53 Cal. 629; it need not allege that the force and violence was against her resistance. If there is no resistance, or resistance of an equivocal character, the conviction will be set aside-47 Cal. 450.

Assault with intent to rob.-Whether the intent was to rob, is in the province of the jury to determine-48 Cal. 82.

Assault with intent to maim.-An intent to maim is necessary-52 Ala. 391.

221. Every person who is guilty of an assault, with intent to commit any felony, except an assault with intent to commit murder, the punishment for which assault is not prescribed by the preceding section, is punishable by imprisonment in the State prison not exceeding five years, or in a county jail not exceeding one year, or by fine not exceeding five hundred dollars, or by both.

Assault with intent to commit felony.-The perpetration of an assault, with intent to commit a felony, is a felony-2 Blackf. 5; 69 Me. 181. But see 4 Mass. 439; and a person may be indicted for an assault and battery with intent to commit a felony-8 Blackf. 575; 23 Ind. 150; 27 id. 15; 53 id. 354; 17 N. H. 253; 16 Ind. 232; 29 id. 80; 34 id. 543; 17 Up. Can. C.P.139. There is no material difference between an assault with intent and an assault with an attempt to commit a crime-14 Ga. 55; 32 Ind. 220. See 14 Ala. 411.

222. Every person guilty of administering to another any chloroform, ether, laudanum, or other narcotic, anæsthetic, or intoxicating agent, with intent thereby to enable or assist himself or any other person to commit a felony, is guilty of felony.

Administering drugs, with intent to influence the passions, is an assault-114 Mass. 303; 5 Mich. 10. See 1 Wheel. C. C. 490.

§ 225. Duel defired.

CHAPTER VII.

DUELS AND CHALLENGES.

§ 226. Punishment for fighting a duel, when death ensues.

§ 227. Punishment for fighting a duel, although death does not ensue.

§ 228. Persons fighting duels, etc., disqualified from holding office, etc. Posting for not fighting.

§ 229.

$ 230. Duties of officers to prevent duels.

§ 231. Leaving the State with intent to evade laws against dueling. § 232. Witness' privilege.

225. A duel is any combat with deadly weapons, fought between two or more persons, by previous agreement or upon a previous quarrel.

Duel defined.-An agreement to fight with loaded pistols, and actually fighting in pursuance of the same, is a duel-1 Blackf.377; 5 Strob. 53; 8 Humph. 84; 4 Yerg. 143; 5 id. 356. The gravamen of the offense is consent; if that took place in this State, the statute offense is complete-58 Ala. 352. If fought in presence of spectators, it is an aggravated affray-see 1 Russ. Cr. 9th ed. § 406. In California, fighting a duel without fatal result is a specific offense-14 Cal. 651. See 9 Leigh, 605.

226. Every person guilty of fighting any duel, from which death ensues within a year and a day, is punishable by imprisonment in the State prison not less than one nor more than seven years.

When death ensues.-In case of deliberate dueling, if death ensues, it is murder-4 Dev. & B. 491; 44 Miss. 762; and consent will not excuse -31 Ga. 411; 17 Wend. 351. In California, it is a special offense-14 Cal. 651.

227. Every person who fights a duel, or who sends or accepts a challenge to fight a duel, is punishable by imprisonment in the State prison or in a county jail not exceeding one year. [Approved March 30th, in effect July 1st, 1874.]

228. Any citizen of this State who shall fight a duel with deadly weapons, or send or accept a challenge to fight a duel with deadly weapons, either within this State or out of it, or who shall act as second, or knowingly aid