in order to authorize a conviction on the second and third counts. This point is not established by the rule of the common law, holding each responsible for the acts of others in a joint commission of a crime. The mere fact that the defendants were employed to arrest and forcibly imprison the child, they being wholly ignorant of an intent on the part of their employer, which actually existed, to cause the child to be sent out of the State illegally, would not in law charge them with such intent. Nor does the qualification introduced into the ruling, of their intending to put the child into the absolute control of the mother,' make them responsible for an intent of the mother to cause the child to be subsequently sent out of the State.

"In the case of the specific intent of the character here charged, the defendants must have knowledge of such intent, to make them criminally liable therefor. It would be open to the jury in such cases, as a matter of fact, to find from all the circumstances that the defendants had such knowledge of the intent and purpose for which they were employed to make the assault, and that they co-operated in such purpose with their employer. But they are not, as a matter of law, to be charged with such intent, upon the proof of the intent on the part of the person employing them, they being found to have been wholly ignorant thereof, and such object not being the natural result or consequence of their employment, or of the acts done by them.”

§ 106. Deserting Employment. - An indictment will not lie against a servant for willfully leaving the employment of one with whom he has agreed to serve-though by statute persons enticing servants to leave their employers are indictable.1

§ 106a. Enticing away Laborer -Statute Construed.-In Langham v. State, 2 MANNING, J., said: "Appellant was indicted under section 3691, of the Revised Code which makes it penal in any person, knowingly to interfere with, hire, employ, entice away, or induce to leave the service of another, any laborer or servant, who has contracted in writing to serve for any specified time, before the expiration of the term contracted for, 'such contract being in force and binding upon the parties thereto.' The laborer or servant in this case was a negro boy, about fourteen or fifteen years of age, who having become dissatisfiled with his employer, left his plantation and premises, and afterwards went to defendant, and engaged to serve him as a laborer on his plantation. The defendant had not enticed or induced the laborer to leave; but the latter appears to have gone away of his own will, from his first employer, and hired himself to defendant. Was the boy restrained from doing so by a contract 'in force and binding upon the parties thereto'?

66 According to the common law, the contract of an infant, except for necessaries, can not be enforced against him: 'nor can he be sued on his covenant as an apprentice; nor is his contract for labor and service generally binding.' In the case last cited, the plaintiff in the lower court was a minor, who had been apprenticed, by a contract under seal, executed by him, to the defendants, to learn the art of a printer. After remaining two or three years in their employment, he left it and obtained service in another office, from which he was discharged, in consequence of a notice and warning sent by defendants to that office and other printing offices, that plaintiff had been apprenticed to them,

State v. Daniel, 89 N. C. 553 (1883). 2 55 Ala. 114.

3 1 Par. on Con., 262, 263 and cases cited; Clark & Co. v. Goddard, 39 Ala. 164.

and they claimed his services. For the damage produced by being thus prevented from obtaining employment, the minor sued, and obtained a judgment against defendants, which was affirmed in this court. In respect to the contract of apprenticeship, the opinion says, 'neither would it do, in a case like the present, to hold that the infant should not be allowed to elect between the ratification and repudiation of his contract, until he attained lawful age. In most cases, the contract, would have expended its force at that time; and to establish such a rule, would be to take from the infant all right to avoid the contract until it was executed. Surely, to withhold the right to renounce a voidable contract, would be as unjust as it is absurd.' These authorities were not referred to in Merrell v. State,1 in which our predecessors held, that the minority of a laborer did not prevent the contract from being binding upon him, in a case arising under section 3691, above referred to; and, therefore, sustained the prosecution. We feel compelled to overrule the decision there made, upon this point, and to hold that the contract between May and the boy John, in the present cause, being voidable, by the latter, though not by May, was not a contract binding upon the parties thereto.

"It follows, that the court erred in refusing to give the seventh instruction requested on behalf of defendant. As our ruling on this point will probably be decisive of this prosecution, we do not consider any of the other questions argued. Let the judgment be reversed, and the cause be remanded."

1 44 Ala. 367.

CHAPTER V.

CONSENT.

ASSAULT-CONSENT AS A DEFENCE.

STATE V. BECK.

[1 Hill, 363; 26 Am. Dec. 190.]

In the Court of Appeals of South Carolina, December, 1833.

Assault-Consent. - A. beats B. at B.'s request, to save B., as both supposed, from a greater punishment. A. is not indictable for an assault on B.

Indictment for assault and battery. Beck and the other defendants joined in a search for the person who had stolen some leather from one of them. They found the leather on the premises of one Anderson, whom they immediately took into custody. While he was in this state some one asked Anderson, if he would not rather be whipped than go to jail. He said he would, and requested Beck to whip him. Beck at first declined, but finally on Anderson's earnest entreaty he consented saying: "If it will oblige you I will do it." He then gave him a few stripes with a switch and released him, but Anderson was afterwards arrested, prosecuted, convicted and punished for the same stealing. The judge charged the jury that Beck was clearly guilty, and they found accordingly. Defendant moved for a new trial.

Bent, for the motion.

Thompson, solicitor, contra.

HARPER, J. We do not think the act in question amounts to an assault and battery on the part of the defendant Beck. A battery is generally defined to be any injury done to the person of another in a rude, insolent or revengful way. There is also another class of cases where some degree of negligence may be imputed; as where a person throwing stones into the highway strikes another passing; or as in the instance of a person throwing a lighted squib into a crowd. But where there is no intention to injure and no negligence, I do not think the offense can be imputed. An instance commonly put is that of a soldier

1 DEFENCES.

19

(289)

firing his piece at muster and without any fault of his own, injuring another, casually and suddenly pausing before it. A surgeon who for his patient's health, cuts off a limb, is not guilty of mayhem, or if one plucks a drowning man out of a river by the hair of the head, this is no assault. If, according to the prescription of the physician in the Arabian Nights, a physician should beat his patient with a mallet for the bona fide purpose of restoring his health, though this might be malpractice, it would be no battery. Where one gave another a license to beat him, there is a case in which it is said the license was held to be void. This may well be. The person receiving the license entertained hostile disposition toward the other, and upon being thus licensed, proceeded to carry his revengful purpose into effect. But in the case before us the defendant had no evil disposition towards Anderson, but the contrary; and to save him from what he considered a greater evil, reluctantly consented to inflict the stripes. However ill judged the act may have been, I can not think it constituted an assault and battery. The case might be different with respect to the other defendants who were acquitted; but as to the defendant before us, the motion for a new trial must be granted.

JOHNSON and O'NEALL, JJ. concurred.

CONSENT-ASSAULT AND BATTERY.

PEOPLE V. BRANSBY.

[32 N. Y. 525.]

In the New York Court of Appeals, June, 1865.

A Criminal Conviction for Assault can not be sustained when there is consent on the part of the complainant.

The defendant in error was indicted for an assault and battery on Ida Klube. He was convicted by the Onondaga Court of Sessions and sentenced to imprisonment for one year and a fine of $250.

At the time of the trial another indictment was pending in the court of Oyer and Terminer charging him with the same transaction as a rape.

The accused was a hackman in Syracuse. He had pursued his calling in that city for over twenty years, and had always sustained a good character.

She was

The complainant was a native of Ardennes in Prussia. twenty-three years of age and claimed that she understood but two words of English, the words "hotel" and "sleep." The evidence as to the extent of her acquaintance with the language was conflicting.

She had recently arrived in the country and at the time of the occurrence in question she was on her way by railroad to Geneva. She had no personal attendant but was traveling with other Germans in the emigrant train. They arrived at Syracuse on the 4th of August, 1863, between ten and eleven o'clock at night. She had a through ticket and remained in the room of the depot to which she was conducted by an officer of the road, as she intended to go with the next emigrant train at six o'clock in the morning.

About an hour after midnight Rosenkrans, the night watchman, ordered all others out, but after examining her ticket, permitted her to remain. He soon after went out, according to his own account of the matter, and when he returned she was gone.

She testified that after the others were ordered away, the accused came in, walked up and down the room and talked with Rosenkrans ; that he came up to her and said something which she did not understand except the words "hotel" and "sleep; " that he took her satchel and . motioned to her to follow; that she went with him to the Sherman House, and that he took her first to the sitting room; that afterwards he and the porter who carried the light, accompanied her to her room, which seems to have been on the principal hall of the third floor; that he remained with her in the room when the servant left; that he soon stepped out for a few moments, and that during his absence she took off her shawl and remained seated until his return; that when he came back, he locked the door, put the key in his pocket, and offered her a glass containing liquor, which proved to be sherry wine; that she tasted but did not drink it; that he motioned to the bed and spoke something about sleep, which she did not understand; that she opened her dress behind, as the weather was hot, but continued sitting in her chair; that he undressed before her, went to bed and then extinguished the light; that she was fatigued and fell asleep; that when she woke he was carrying her to the bed; that she struggled with her feet all she could, but was almost smothered by the weight of his person; that he had connection with her, and she then returned to the chair; that she remained there crying for about fifteen minutes, when the same thing was repeated, with the same struggles on her part; that he then dressed himself and went out, and that he neither paid her or offered her money.

On her cross-examination she admitted, in answer to inquiries which she appeared to resent, that she once before had illicit connec