CRIMINAL OFFENSES.

Section numbers to notes refer to the Revised Statutes of 1914 and sections herein.

Under this section it is necessary to show that the unlawful act was the proximate cause of the death. Dunville v. State, 188 Ind. 373, 123 N. E. 689.

Under this section the words "unlawful act" involve want and recklessness as well as acts prohibited by statute. Dunville v. State, 188 Ind. 373, 123 N. E. 689. The legislature in adopting this section from the common law must have intended to adopt the common law meaning of words used. Dunville v. State, 188 Ind. 373, 123 N. E. 689.

This section defining manslaughter is adopted bodily from the common law. Dunville v. State, 188 Ind. 373, 123 N. E. 689.

2240. Assault and battery with intent.

Under an indictment charging the commission of an assault and battery with the intent to commit a felony, the defendant may be convicted of an assault and battery only, and the indictment should not be quashed nor the judgment arrested if the assault and battery is properly charged. Zoborosky v. State, 180 Ind. 187, 102 N. E. 825.

A person in control of a vehicle may be guilty of an assault and battery by causing the same to strike another vehicle in which a person is riding. Luther v. State, 177 Ind. 619, 98 N. E. 640.

The fact that a person in control of a vehicle was violating the law as to excessive speed, does not make him guilty of an assault and battery when his vehicle comes in contact with another vehicle in which a person is riding, when the rate of speed is not the cause of the collision. Luther v. State, 177 Ind. 619, 98 N. E. 640.

Persons charged with the commission of an assault and battery with an intent to commit a felony, may be convicted of the assault and battery only if such offense is properly charged. Zoborosky v. State, 180 Ind. 187, 102 N. E. 825.

One convicted under this statute of assault and battery can not complain that the indictment was defective in charging assault and battery with intent to commit murder. Bennett v. State, 188 Ind. 380, 123 N. E. 797.

[Acts 1921, p. 138. In force March 2, 1921.]

2246. Robbery.-1. Whoever, forcibly and feloniously, takes from the person of another any article of value, by violence or by putting in fear, is guilty of robbery, and, on conviction shall be imprisoned in the state's prison not less than ten years nor more than twenty one years, and be fined not exceeding five thousand dollars and disfranchised and rendered incapable of holding any office of trust or profit for an indeterminate period. Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit robbery, shall on conviction suffer the same punishment as is prescribed for robbery. Upon a second conviction of either of said offenses, such person as convicted shall be imprisoned in the state's prison for life. Provided That upon second conviction no court hearing such case on such charge may suspend or commute any sentence imposed for such crime as contemplated in this act.

This section amends section 2246 Revision of 1914.

Section 2 of this act provides that the act be in force and effect from and after its passage.

[Acts 1921, p. 373. In force May 31, 1921.]

2250. Rape.-361. Whoever unlawfully has carnal knowledge of a woman forcibly against her will, or of a male or female child under sixteen (16) years of age; or whoever being over eighteen (18) years of age, has carnal knowledge of a woman, other than his wife, which woman is insane, epileptic, idiotic, feeble-minded, or a pauper inmate of a poor asylum, he knowing of such condition of such woman; or whoever, being over eighteen (18) years of age, has carnal knowledge of a woman who is an inmate of the woman's prison or the Indiana industrial school for girls, is guilty of rape, and, on conviction, shall be fined in any sum not exceeding one thousand dollars ($1,000) at the discretion of the court, and be imprisoned in the state prison not less than five years nor more than twentyone years: Provided, In cases where a female upon whom the crime is committed is a child under the age of twelve years, the punishment shall be imprisonment in the state prison for life. Whoever perpetrates an assault and battery upon any female person with intent unlawfully to have carnal knowledge of such female person, forcibly and against her will, shall be deemed guilty of attempted rape and on conviction thereof shall be fined in any sum not exceeding one thousand dollars ($1,000) and shall be imprisoned in the state prison not less than five years nor more than twenty-one years.

This section amends section 2250 Revision of 1914.

An indictment alleging that the defendant assaulted a female child with the intent to ravish and carnally know her, and alleges that such child was under the age of "twelve years, to wit: ten years of age," sufficiently alleges the age of the child. Zoborosky v. State, 180 Ind. 187, 102 N. E. 825.

When a person is charged with rape by having carnal intercourse with a female under age of consent, the female may testify as to her age when her information on the subject was received from a parent. Ingle v. State, 182 Ind. 198, 106 N. E. 373.

If on the trial of a charge of rape upon a female under the age of consent the female testifies that the defendant had intercourse with her by force and against her will, her subsequent treatment and relations with the defendant may be considered by the jury. Clokey v. State, 182 Ind. 589, 107 N. E. 273.

2250a. Repeal.-2. All laws and parts of laws in conflict herewith are hereby repealed, but such repeal shall not affect any prosecutions pending or offenses committed under existing laws, but such offenses shall be prosecuted and such prosecutions shall be continued to a final determination as if this act had not passed.

See section 2250 for section 1 of the above act.

2256. Attempt to procure miscarriage.

Evidence held sufficient under this statute to establish venue in prosecution for attempting to cause miscarriage. Jackson v. State, Ind. 121 N. E. 114.

[Acts 1921, p. 366. In force May 31, 1921.] 2258a. False statements regarding person.—1. It shall be unlawful and a misdemeanor for any person to make any false, defamatory or slanderous statement regarding any other person, or to make or repeat any false statement regarding any person, which, if true, would subject such person to prosecution for a criminal offense, or to make or repeat any false statement regarding any person which injuries or tends to injure such person either in name, character, general reputation or the pursuit and earning of a livelihood, Provided That the person uttering such statements shall have had no good, sufficient and reasonable grounds for believing and considering the same to have been true, and on conviction shall be fined not less than twenty five dollars, nor more than five hundred dollars, to which may be added imprisonment in the county jail or Indiana state farm for any period not to exceed sixty days.

[Acts 1921, p. 699. In force May 31, 1921.]

2258b. False statements concerning banks-Penalty.-1. Any person who shall wilfully and maliciously make, circulate or transmit to another or others, any false statement, rumor or suggestion, written, printed or by word of mouth, which is directly or by inference derogatory to the financial condition or affects the solvency or financial standing of any bank, savings bank, banking institution, trust company, or building and loan associations doing business in this state, or who shall counsel, aid, procure, or induce another to start,

transmit or circulate any such statement or rumor, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars or by imprisonment for a term of not more than one year, or both.

[Acts 1919, p. 87. In force May 15, 1920.]

2260. Arson, penalty.-371. Whoever wilfully and maliciously burns or attempts to burn any dwelling house or other buildings, finished or unfinished, occupied or unoccupied, whether the building be used or intended for a dwelling house or for any other purpose; or any boat, wharf boat, watercraft or vessel, automobile, railroad car, interurban or street car, finished or unfinished, or any reaping machine, mowing machine, threshing machine, separator, clover huller, vehicle, plow, cultivator, or any other agricultural or farming implement; or any bridge whether wholly within this state or not, or any cord-wood in a pile, or any rick, stack or shock of grain, hay or straw, or any grain not severed from the ground, or any fence of whatever material constructed; or the material intended for the construction of any such house, building, boat, bridge, fence, automobile, or other motor vehicle, reaping machine, mowing machine, threshing machine, separator, clover huller, vehicle, plow, cultivator, or any other agricultural or farming implement or any railroad car, interurban or street car; or any tan bark, tree, timber or lumber, or water tank connected with a railroad; the property so burned or attempted to be burned, being of the value of twenty dollars or upwards, and being the property of another, or being insured against loss or damage by fire, and the burning or attempt to burn being with intent to prejudice or defraud the insurer, is guilty of arson, and, on conviction, shall be imprisoned in the state prison not less than two years nor more than twenty-one years, and fined not exceeding double the value of the

property burned or attempted to be burned; and should the life of any person be lost thereby, such offender shall be deemed guilty of murder in the first degree, and shall suffer death or be imprisoned in the state prison during life.

This section amends section 2260 Revision of 1914.

The sufficiency of an indictment charging a person with setting fire to insured property with the intent to defraud the insurance company, is considered. Hart v. State, 181 Ind. 23, 103 N. E. 846; Allen v. State, 183 Ind. 37, 107 N. E. 471.

One who burns any dwelling-house, etc., of $20 or upwards in value is guilty of arson, under this section and may be fined not exceeding double the value of the property burned or attempted to be burned, subject to Const., article 1, section 16, prohibiting excessive fines. O'Daniel v. State, 188 Ind. 477, 123 N. E. 241, 124 N. E. 492.

In prosecution for conspiracy under this section and section 2647, a declaration of coconspirators eight months before the crime is admissible. Roberts v. State, 188 Ind. 713, 124 N. E. 750.

Acts 1917, ch. 69, defining and punishing the crime of vehicle taking does not prevent a conviction of grand larceny for theft of an automobile under this section. Leap v. State, Ind. - 127 N. E. 274.

[Acts 1917, p. 428. In force May 31, 1917.]

2260a. Arson in second degree.-1. That whoever wilfully and maliciously prepares, places, arranges, sets or distributes any combustible material, explosive substance, instrument, liquid or other substance in or about any house, building or other structure; or any ship, vessel, steamboat or other water craft, or any lumber, agricultural products, railroad car, electric car, automobile, wagon or farm machinery; or any building materials, manufactured products or materials intended for manufacture, with the intent to set fire to or blow up or destroy any such property, it being of the value of twenty dollars or upwards, and being the property of another, or being insured against loss or damage by fire, and such acts of preparing, arranging, setting or distributing being done with intent to prejudice or defraud the insurer; and has not yet set fire to or blown up such combustible materials, explosive substance, instruments, liquids or other substances, so placed, arranged, set or distributed; is guilty of arson in the second degree, and, on conviction, shall be imprisoned in the state prison for not less than one year nor more than eight years.

[Acts 1921, p. 279. In force March 8, 1921.]

2264. Burglary.-1. Whoever in the night time or day time breaks and enters into any dwelling, kitchen, smokehouse, outhouse, shop, office, storehouse, business house, warehouse, mill, distillery, pottery, factory, barn, or stable, schoolhouse, church, meeting house, or building used for the purpose of religious worship, boat, wharfboat, or any water craft, car, factory, freight house, station house, depot,