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no defence.

to the act, the burden of proving this being on the defendant.' But such consent is invalid if obtained by fraud.? Subsequent

$ 1760. A marriage of the parties, subsequent to the marriage & seduction, though followed by the desertion of the husdefence.

band, is a defence to an indictment for the seduction. § 1761. Under some of the statutes it is essential that the girl

seduced should have been under a specified age. Under Ignorance and infancy others, she must have been of prior chaste character.

Will proof of an honest belief by the defendant that she was above the limited age be a defence? It has properly been decided that such belief is no defence; and that it is even inadmissible for the defendant to show that he was told by the girl herself that she was above the limited age, or that her appearance was that of a person of greater age. So on the same reasoning a belief that she was unchaste is no defence. As has been seen, the defendant's infancy is no defence.7 § 1762. The indictment must follow the distinctive local statute

under which it is drawn. The special circumstances Indictment must follow need not be detailed. The age of the woman need not be

specified. 10 § 1763. While under the statutes the prosecutrix is a competent

witness, her testimony, in most jurisdictions, is insufficient Prosecutrix without corroboration; though in some States such cormust be roboration is required only to the promise of marriage.

The corroboration when required by statute, must be

statute.

as a wituess

corroborated.

IR. v. Burrell, L. & C. 354; 9 Cox tion as to age was irrelevant. But C. C. 368. Such consent may be im see on this point Whart. Cr. Ev. § plied from the parents bringing up the 149. girl to a loose life. R. v. Primelt, 1 F. 5 R. v. Mycock, 12 Cox C. C. 28. & F. 50. See supra, § 586.

Infra, s

6 See supra, $ 88. 1765.

? Kenyon v. People, cited supra, § 2 R. v. Hopkins, C. & M. 254. 1758. Supra, $ 150.

8 See, State v. Stogdel, 13 Ibid. 565; 8 Com. v. Eichar, 4 Clark (Pa.), 326; Stinehouse v. State, 47 Ibid. 17; see 1 Am. L. J. 551.

State v. Curran, 51 Iowa, 112; West v. • R. v. Booth, 12 Cox C. C. 231 ; R. State, 1 Wis. 209; Wilson v. State, 73 v. Robins, 1 C. & K. 456 ; State v. Ruhl, Ala. 618. 8 lowa, 447. See supra, § 88. In 9 State v. Conkright, 58 Iowa, 338. State v. Ruhl, it was said, obiter, that 10 Polk v. State, 41 Ark. 483. if the motive were illegal, the specifica

aliunde,' and must go to matters of substance material to the issue.? The law in this respect is not altered by the admission of defendants as witnesses in their own behalf.:

§ 1764. When the statute permits, the defendant may be convicted of fornication, under an indictment for seduction. And the acquittal of seduction under such a statute is a bar May be con

viction of to an indictment for fornication. In any view counts for minor

offence. seduction and fornication can be joined. On an indictment for abduction, if there be proper averments, there may be a conviction of assault."

$ 1764 a. It has been held that at common law, if rape be proved, the offence merges ;8 though this position is now open to much dispute. But in any view, unless actual and Merger in overwhelming force be proved, this defence cannot be set

rape.

up.10

i Kenyon v. People, 26 N. Y. 203; Boyce v. People, 55 N, Y. 644. As to Armstrong v. People, 70 lbid. 644; cross-examination, see Armstrong v. Com. v. Walton, 2 Brewst. 487 ; Com. People, 70 N. Y. 138. 8. McCarty, 2 Clark (Pa.), 351; Rice 2 Zabriskie v. State, 43 N. J. L. 640 ; v. Com., 100 Penn. St. 28 ; Cauningham Rice v. Com., 100 Penn. St. 28 ; State v. Ştate, 73 Ala. 51 ; Wilson v. State, v. Smith, 54 Iowa, 743 ; see State v. Ibid. 618; State v. Kingsley, 39 Iowa, Gates, 27 Minn. 52. In Rice v. Com., 439 ; State v. Wells, 48 Ibid. 671 ; State 102 Penn, St. 408, it was held that v. Painter, 50 Ibid. 317; State v. Cur- mere social attentions do not constitute ran, 51 Ibid. 112. As to construction such corroboration. of testimony of witness, see State v. 8 Rice v. Com., 100 Penn. St. 28. Haven, 43 Ibid. 181.

• Hopper v. State, 54 Ga. 389. And As already seen, an infant cannot be so of adultery in Georgia.

Wood v. brought into court to prove resem- State, 48 Ibid. 192; and see Whart. Cr. blance to the putative father.

State v.

Pl. & Pr. $$ 736 et seq. ; Nicholson v. Danforth, 48 lowa, 43; citing Keniston Com., 91 Penn. St. 390; Rice v. Com., v. Rowe, 16 Me. 38; Risk v. State, 19 102 Penn. St. 408. Ind. 152. See Whart. Crim. Ev. $ 6 See State v. Bierce, 27 Conn. 319; 313.

Dinkey 1. Com., 17 Penn. St. 126 ; Where, on the trial of an indictment Nicholson v. Com., ut supra. under the New York act, the prosecu 6 Nicholson v. Com., 91 Penn. St. trix testifies to the promise, inter- 390. course, and other facts essential to 1 R. v. Barrett, 9 C. & P. 387. constitute the offence, and other testi.

v. Lewis, 48 Iowa, 578; mony tending to support her on such Croghan State, 22 Wis. 444; points is given, whether or not she is Whart. Cr. Pl. & Pr. § 404. sufficiently supported to justify a con I Supra, SS 578, 1344, 1746. viction is a question for the jury. 10 People v. Royal, 53 Cal. 62. Crandall v. People, 2 Lansing, 309;

8 State

tinct offence,

$ 1765. In some States statutes have been adopted making it

indictable to entice unmarried women from their homes for “ Enticing" for prostitu- the purpose of prostitution. In such prosecutions it is tion a dis

not necessary to show that there was a final and perma

nent departure from the parent's home. The fact of prostitution is to be iuferred from all the circumstances of the case.? The burden is on the prosecution to prove the chastity of the woman, when this is a statutory prerequisite to the prosecution.”

The federal statute prohibiting importation of women for prosti. tution applies to importation from all foreign lands.

1 Slocum v. People, 90 Ni. 274; see Milne, 60 Ibid. 71 ; People v. Cook, 61 People v. Carrier, 46 Mich. 442.

Ibid. 478. Under New York statute, see Beyer When the term “ for the purpose of v. People, 86 N. Y. 369 ; Schnicker v. prostitution" is used in the statute, it People, 88 Ibid. 192.

is to be treated as equivalent to “makUnder the Tennessee statute for tak- ing a prostitute.” See State ing a female from her parents for the Stoyell, 8 Me. 24; Com. v. Cook, 12 purpose of prostitution, the girl's Metc. 93 ; Carpenter v. People, 8 Barb. consent is no defence. Tucker v. State, 603. See Slocum v. People, 90 III. 274. 8 Lea, 633. See State v. Feasel, 74 That the indictment must aver, under Mo. 524. And as to English statute, such a statute, “for the purpose of see supra, § 1759.

prostitution” see Osborn v. State, 52 Under the California statute, where Ind. 526. That the meaning of prosthe word used is “take,” it is titution is a question of law, see State enough if improper solicitations are v. Bierce, 27 Conn. 319. proved to have been employed. People : Com. v. Whitaker, 131 Mass. 224. v. Marshall, 59 Cal. 386 ; People v. Supra, § 1757.

Johnson, 19 Blatch. 257. 554

9 Com. v.

CHAPTER XXXVI.

DUELLING.

I. REQUISITES OF OFFENCE,

A duel is a concerted fight with

deadly weapons for satisfaction

of honor, $ 1767.
Sending challenge is a misde-

meanor at common law, § 1768.
By statute specific penalties are

inflicted, § 1769.
The combat must be premedi-

tated, $ 1770.
Deadly weapons must be intended,

$ 1771.
Challenge must be for satisfaction

of honor, 1772.

Persons provoking challenge are

indictable at common law, §

1773. No defence that duel was to be

fought extra-territorially, $ 1774. All concerned are principals, S

1774 a.
II. INDICTMENT.

Challenge need not be specially

pleaded, § 1775.

Statute must be followed, § 1776. III. EVIDENCE.

Challenge may be inferred from

facts, $ 1777. Admissions of seconds are evi.

dence, § 1778.

I. REQUISITES OF OFFENCE. 6 1767. A DUEL is a concerted fight between two persons, with deadly weapons, the object of which is claimed to be the

Duel is a satisfaction of wounded honor.? To the Romans and concerted Greeks it was unknown, though with them, as with the

deadly fight

for the Jews, the usage existed of committing the settlement of satisfaction

of honor. national or tribal quarrels to two champions who were to decide the question in a single fight. To such encounters, as well as to the fights of voluntary champions in public games, the ordinary laws of homicide did not apply : “ Quia gloriae causa et virtutis, non iniuriae causa videtur damnum datum.” But this was because such contests were engaged in for public purposes and under public

1 The English Draft Code of 1879 challenges, or knowingly carries any contains the following :

challenge, to or endeavors by any “Every one shall be guilty of an means to provoke any person to fight indictable offence, and shall be liable a duel, or endeayors to provoke any upon conviction thereof to one year's person to challenge any other person imprisonment with hard labor, who to fight a duel.”

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sanction. There can be no question that if two individuals, to redress private wrongs or insults, had coolly agreed to fight with deadly weapons, the death of either party, had it resulted, would have been considered murder.

§ 1768. Duels, in their modern sense, took their origin from the chivalric idea inherent in feudalism; an idea which treated knightly honor as a quality so delicate and precious that an insult to it could only be satisfied by an appeal to arms. Naturally, therefore, the feudal jurisprudence treated duelling with indulgence ; and hence when we search the old English common law, the only utterances on this point that we can find are ambiguous or apologetic. The canon law, however, spoke with unequivocal sternness. To that law there was no distinction between gentle and simple, between knight and serf; and the condemnation it pronounced on the serf who killed another serf in a vulgar but premeditated fight, it pronounced on the knight who killed another knight in a duel conducted according to all the rules of chivalry. “Detestabilis duellorum usus, fabricante diabolo introductus, et cruenta corporum morte ani. marum etiam perniciem lucretur.”1 Gradually this principle worked

itself from the English ecclesiastical to the English comSending challenge

mon law courts, till the doctrine was reached, that to a misde

send a challenge is a misdemeanor at common law, even though the challenge be declined ; and, as already ex

pressed, that killing in a duel is murder, and that all persons engaged in preparing the duel, if assisting at the death, are principals, if absent, accessaries before the fact. § 1769. But this view, as already seen, it has been found im

practicable to carry into uniform practice, even where By statute

death results, and where the party who strikes the fatal specific penalties blow is defendant. Still greater is the difficulty when inflicted.

the seconds are on trial, or when the result was not fatal.

meanor at common law.

Acta conc. Trid. 1562; Decret. de reader, who seeks to examine the hisreform. cap. xix. This is but a con tory of the law in this connection, will densation of the old canon law.

find materials in Quintus, Diss. de 2 R. v. Langley, 2 Ld. Raymond, Duello, etc., Groning. 1830; Gneist, 1029 ; R. v. Phillips, 6 East, 464; R. der Zweikampf, 1848; Pujos, Essai v. Young, 6 C. & P. 644. See Duel sur la Repression du Duel, Paris, Cases, 2 How. St. Tr. 1033, 1047 ; Smith 1863; Sabine's Notes on Duels and v. State, 1 Stew. 506 ; State v. Perkins, Duelling, 1860. 6 Blackf. 20.

Supra, § 482. See supra, $ 215. The curious

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