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ther, and frequently invited to the house, made use of no other seduction than the common blandishments of a lover, to induce the girl secretly to elope with and marry him, if it appear that it was against the consent of the father.(q)

Upon a complaint or trial of an indictment for this offence, it will be necessary to prove that the child was within the age of fourteen years, and the want of consent of the father or mother, guardian or other person having the legal charge of her person;(r) and that such taking was for the purpose of concubinage, prostitution or marriage. Upon the death of the father, the mother retains her lawful authority over the child, notwithstanding a second marriage; and the consent of the second husband is immaterial. (s) There must be a continuous want of consent on the part of the parent, &c. ; for if the consent be once given, it cannot, it is said, be revoked; but this point wants further confirmation.(t) Under the 25th and 26th sections of the statute above referred to, it is not necessary to prove either a marriage or defiling, but only an intent to marry or defile; which will, in general, appear from the whole circumstances of the case. (u) It is not clear whether it would be an offence in England, under a statute similar to ours, to take away a girl against the consent of her parent, but by consent of one who has the temporary care of her. (v) In this state, the question depends upon who has the "legal charge of her person" at the time, within the meaning of the statute.

Evidence.] It seems to be well settled, that where a woman is taken away and married by force, she is a competent witness against her husband, on an indictment for that offence, though he is her husband in fact-contrary to the general rule of law; because he is no husband in law, in case the actual marriage was also against her will. (w) And, for the same reason, she is a competent witness for him, on a prosecution for this offence, though she has cohabited with him from the day of the marriage.(x) In analogy with this rule respecting marriages by force, it is presumed that a female under fourteen, taken and married without the consent of her parents or guardian, might, under our statute, be a witness for or against her husband.

Accessaries.] All persons aiding and assisting in the commission of these offences, as accessaries before the fact, are to be punished in the same

(q) Roscoe's Cr. Ev. 196. 1 Russ. 579. (r) Idem.

(s) Ratcliff's case, 3 Coke's Rep. 39. (t) 1 Russ. on Cr. 578.

(u) Roscoe's Cr. Ev. 195.

(v) 1 East's P. C. 457. Hicks v. Gore, 3 Mod. 84.

(w) 4 Black. Com. 209, n. (8), Chitty's ed. Arch. Cr. Pl. 369. 1 Phil. Ev. 70. (x) 1 Hawk. c. 41, s. 13. 1 Russ. on Cr. 828. 1 East's P. C. 454.

manner as principals in the first degree. (y) Accessaries after the fact are to be punished by imprisonment in a state prison not more than five years, or in a county jail not more than one year, or by a fine of $500.(2) Accessaries after the fact are those who conceal or give other aid to the offender after the commission of the offence, with knowledge of his having committed it, and with the intent that he may escape punishment.(a) Where the female, therefore, is under no restraint at the time of the marriage, those who are present, but who are ignorant of the previous circumstances, cannot be convicted as accessaries after the fact.(b)

4. MAYHEM.

Mayhem, or maiming, at common law is the violently depriving another of the use of such of his members as may render him less able in fighting, either to attack his adversary or to defend himself. (c) But if the injury be such as to disfigure him only, without diminishing his corporal ability, it does not, at common law, fall within the crime of mayhem. Upon this distinction the cutting off, disabling, or weakening a man's hand or finger, or striking out an eye or fore tooth, or castrating him, or, as Lord Coke adds, breaking his skull, are said to be maims; but the cutting off his nose or ears is not so, at common law. () By the ancient common law the punishment of this offence was member for member, on the principle of the law of Moses; but this practice has been long since exploded. The revised statutes, which clearly define this crime and provide for its punishment, have introduced some new rules in relation to it, differing from the doctrine of the common law. The section of the statute relating to mayhem is as follows:

Every person who, from premeditated design, evinced by lying in wait for the purpose, or in any other manner; or with intention to kill or commit felony, shall cut out or disable the tongue, put out an eye, slit the lip, or slit or destroy the nose, or cut off or disable any limb or member of another, on purpose, is punishable by imprisonment in a state prison not less than seven years. (e)

The essential requisites to constitute this offence are malice, (or premeditated design, as the act expresses it,) evinced by lying in wait, or in any other manner; or that the injury should result from an attempt to kill or commit felony.

(y) 2 R. S. 639, § 6.
(z ld. ib. § 7.
(a) Idem.

(b) Cro. Car. 489, 493.
(c) 4 Black. Com. 205.

(d) Roscoe's Cr. Ev. 654. 1 East's P. C. 393. 1 Coxe, 453. 7 Mass. Rep. 245.

(e) 2 R. S. 664, § 27.

With respect to the malice or premeditated design, it does not seem necessary that it should be directed against any particular person. If it be conceived against all persons who may happen to fall within the scope of the perpetrator's design, the particular mischief done to any one will be connected with the general malignant intent, so as to allow the statute to attach upon the offenders. So if a blow be intended to maim one person, and by accident maim another, the party is equally liable to be indicted for such maiming.(f) Provided the act is done from premeditated design, it matters not how sudden the occasion. (g) Though in general, where the injury arises out of a sudden attack made by the defendant, but unconnected with any premeditated design upon the person, it is not within the statute. As to lying in wait, it has been held that it is not necessary the prisoner should lurk in any particulor place, and effect the mischief by suddenly rushing from it. It will suffice, if having formed an intention to maim, he takes a convenient opportunity of effecting his purpose.(h) And where the prisoner was in concert with pickpockets to cut or stab those who should oppose them, and in prosecution of this intention, he ran to a person who had apprehended one of his associates, and maimed him with a knife, this was holden to be a lying in wait. (i) Where, however, the injury arises out of a sudden attack, though the prisoner is engaged in an unlawful purpose, if such purpose is less than felony, it will not amount to mayhem. This was held where the defendant was stealing turnips, and on being accosted by a servant of the owner, struck him with an instrument. (k) The lying in wait is not necessary to the completion of this crime. It is only mentioned in the statute as an evidence, among others, of malice. With regard to proof of malice, or of an intention to kill or commit a felony, in the absence of direct proof, resort may be had to presumptive evidence.(7) And in cases of this kind it is obviously of importance, in estimating the prisoner's real intentions, to consider the time at which the offence was committed, the nature of the instrument used, the part of the body on which the wound was inflicted, previous provocation, threats, &c. according to the plain and fundamental rule that a man's motives and intentions are to be inferred from the means which he uses and the acts which he does."(m)

As to the word "disable" in the statute, it has been decided to mean,

(f) 2 Hawk. ch. 23, s. 16. 2 East's

P. Č. 396.

(g) 1 Russ. on Cr. 586.

(h) Leach's C. C. 259.

(i) Idem, 57, n. (a). 1 East's P. C. 397.

(k) 3 Chit. Cr. L. 785.

(1) Leach's C. C. 187. 1 Yeates, 415. (m) Arch. Cr. Pl. 354. Roscoe's Cr.

Ev. 653.

to do something which creates a permanent disability, and not merely a temporary injury; therefore where an intent to disable was charged, and it appeared that the prisoner only intended to disable the party till he could effect his own escape, it was held not to be within that part of the statute.(n)

There must be a maiming; and for this purpose a wound in the throat or on the neck will not suffice to bring the offender within the statute. (o) But to constitute a slitting of the nose, it is not necessary that the nostrils should be penetrated; for a wound across the upper part of the nose, on a level with the eyes, if it cuts the flesh, and divides the frontal vessels of the forehead, will constitute mayhem. (p)

It is a good defence to charges of this kind, that the act was done in self defence. Yet it is not every trifling assault that will justify a griev ous and immediate mayhem, such as cutting off a hand or leg, or biting off a joint of a man's finger, unless it happened accidentally, without any cruel or malignant intention, or after the blood was heated in the scuffle; but it must appear that the assault was, in some degree, proportionate to the mayhem. Yet a man cannot justify maiming another in defence of his possessions, but only in defence of his person. This restriction, however, cannot be intended to extend to cases where a man defends himself against a known felony threatened to be committed with violence against even his property.(q)

Attempts to commit this crime, where the prisoner has done any act towards its completion, but has failed or been frustrated in the attempt, may be punished as in other cases of attempts to commit crimes.(r) Assaults with deadly weapons with intent to maim, will be considered hereafter.(s)

5. KIDNAPPING; AND SELLING PERSONS KIDNAPPED. The provisions of our statute on this subject are as follows:

Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other, with intent either to cause such other person to be secretly confined or imprisoned in this state against his will; or to cause him to be sent out of this state against his will; or to cause him to be sold as a slave, or in any way held to service against his will, shall be imprisoned in a state prison not to exceed ten years. (e)

(n) Boyce's case, 1 Moody's C. C. 29. 23, s. 23. 1 Ld. Raym. 177. 11 Mod. (0) 3 Chit. Cr. L. 785.

(p) Id. ib.

(9) 1 East's P. C. 402. 2 Hawk. c.

43.

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And offences of this description may be tried either in the county in which they were committed, or in any county through which the person kidnapped or confined was taken while under such confinement. (ƒ)

Upon the trial of such offences the consent thereto of the person kidnapped or confined, will not be a defence, unless it appears that it was not extorted by threats or duress. (g)

Accessaries after the fact to this offence, are punishable by imprisonment in a state prison not more than six years, or in a county jail not more than one year, or by a fine not exceeding $500.()

The selling of persons of color forcibly taken, inveigled or kidnapped, from this state to any other place, is punishable by imprisonment in a state prison not more than ten years, or in a county jail not more than one year, or by a fine not exceeding $1000.(i) And this offence may be tried in any county in which the person kidnapped was taken, kidnapped or inveigled, or through which he was carried or brought.(k)

6. CHILD STEALING.

This offence is provided against by the revised statutes; by which it is enacted that every person who shall maliciously, forcibly, or fraudulently, lead, take, or carry away, or decoy or entice away, any child under the age of twelve years, with intent to detain and conceal such child from its parent, guardian, or other person having the lawful charge of such child, may be punished by imprisonment in a state prison not more than ten years, or by imprisonment in a county jail, and by a fine not exceeding $500.(1)

To support a complaint or indictment under this statute, the prosecutor must prove: 1. The leading, taking, or carrying away, or decoying or enticing away of the child, either by force or fraud, as mentioned in the statute. Where the child is not produced as a witness, or is of such tender years as to be unable to give evidence, the taking or decoying, &c. must be proved by the other circumstances of the case. 2. The of the child. It must be proved that the child is not more than twelve years of age; but the precise age mentioned in the complaint or indictment is im naterial. 3. The malicious intent to detain and conceal the child must be proved as laid, and will, in generai, be gathered from all the circumstances of the case. This intent may be inferred from the secret manner in which the child was taken away.(m) As to the mean

age

(ƒ) 2 R. S. 664, § 29.

(g) Id. ib. § 30.

(h) Id. ib. § 31.

(i) Id. ib. § 32.

(k) Id. ib. § 33.

(1) Id. ib. § 34.

(m) Roscoe's Crim. Ev. 30.

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