fully swear falsely in verifying any such account guilty of perjury. Laws of 1854, ch. 332, § 8.—This declares willful false swearing to any oath or affidavit which may be lawfully required by any rules and regulations of certain canal officers to be perjury. Laws of 1854, ch. 398, tit. iii., § 3.-This act provided for an enrollment of the militia, and authorized any person who claimed exemption from duty to file an affidavit of the facts, as the basis of an examination of his claim to be made by the assessors; and the section cited declares that to swear falsely in such affidavit is perjury. Laws of 1859, ch. 44, tit. iv., § 6.-This section authorizes the trustees of the village of Monrovia to examine on oath any property owner claiming a reduction of taxes, and declares willful false swearing on such examination to be perjury. Laws of 1859, ch. 380, §§ 13, 14.-This is the registry act for the city of New York. It authorizes certain questions to be put to electors under oath by inspectors of election and by the board of registration. The section cited declares false swearing perjury. Laws of 1859, ch. 470, § 7.—This statute provides for the sale of certain lands belonging to the State, and directs officers therein named to file reports verified by affidavits. Section 7 makes all false swearing, under any of the provisions of the act, perjury. Laws of 1860, ch. 259, § 25.-The statute is amendatory of the Metropolitan Police Commissioners' act. The twenty-fifth section, after empowering the board of Metropolitan Police Commissioners to subpoena witnesses, etc., declares false swearing by a witness upon any necessary proceeding under the regulations established by the commissioners, perjury. Laws of 1860, ch. 465, § 4, declares witnesses testifying falsely before the commissioners appointed to ascertain and collect the damages caused by destruction of property at quarantine grounds, on Staten Island, in September, 1858, guilty of perjury. Laws of 1863, ch. 90, § 15.-The act, which is for the protec tion and improvement of the Tonawanda band of Seneca Indians, authorizes oaths to be administered for several purposes, and provides in section 15 that willful false swearing by any person to whom any oath may be administered according to the act shall be deemed perjury. Laws of 1864, ch. 253, § 9, provides for the punishment of taking false oaths under the soldiers' voting act. By force of the definition of perjury contained in the Revised Statutes, false swearing upon the examination, authorized by either of the above mentioned statutes, would have been punished as perjury, without any express provision to that effect in the statute authorizing the proceeding.1 Perjury may be committed by a witness in a statute arbitration, although the arbitrators were not sworn pursuant to the statute; their oath being waived by the parties. If after a witness is sworn before arbitrators, and new parties and subjects of controversy are added by submission, it is a different cause, and it is not perjury, without a new oath, to testify falsely.3 Informalities in the mode of referring an action were held immaterial on an indictment for perjury, committed in giving false testimony before the referee.1 Perjury may be committed in an affidavit made for the purpose of procuring a process, e. g., a certiorari, though the particular case made is one in which the issue of the process is prohibited. Perjury may also be committed upon the examination of bail, as to their competency." 5 7. Evidence of One Witness not Sufficient to Procure Conviction. The evidence of one witness is not sufficient to convict the defendant on an indictment for perjury, as in such case there would be only one oath against another. But this rule must not be understood as establishing that two witnesses are necessary to disprove the fact sworn to by the defendant, for if any other material circumstance be proved by other witnesses, in confirmation of the witness who gives the direct testimony of perjury, it may turn the scale and warrant a conviction.8 So if there be only one witness, circumstances strongly corrobative are enough, although not in themselves sufficient to prove a Rep. Coms. of Penal Code, p. 49. 2 1 Den., 440; Howard v. Sexton, 4 Com., 157. • Bullock v. Koon, 4 Wend., 531. Peo. v McGinnis, 1 Park. Cr., 387. Tomlinson's Case, 4 City H. Rec., 125. 7 4 Blac. Com., 358; 1 Phil. on Evidence, 151; Reg. v. Muscot, 10 Mod.. 193. Rex v. Leewich, 6 Geo., 3; 1 Phil. on Evidence, 152, 7th ed. fact. But where there is only one direct witness, the evidence should be strong to confirm that witness in order to warrant a conviction.2 8. Persons Convicted of Perjury Incompetent as Witnesses. A person who, upon conviction, shall be adjudged guilty of perjury, shall not thereafter be received as a witness, to be sworn in any matter or cause whatever, until the judgment against him be reversed. The same rule applies upon a conviction for subornation of perjury. And a person convicted of perjury is an incompetent witness, though he has been pardoned by the Governor and the pardon purports to restore him to all his civil rights, the Legislature having provided that such convict shall not be received as a witness till such judgment be reversed. Such incapacity to testify is a rule of evidence, and not a punishment of the offence." 9. Courts to Commit for Perjury. Whenever it shall appear to any court of record that any witness or party, who has been legally sworn and examined in any cause, matter or proceeding pending before such court, has testified in such manner as to induce a reasonable presumption that he has willfully and corruptly testified falsely to some material point or matter, such court may immediately commit such party or witness, by an order or process for that purpose, to prison, or take recognizance, with sureties, for his appearing and answering to an indictment for such perjury. Such court shall thereupon bind over the witnesses to establish such perjury to appear at the proper court to testify before the grand jury and on the trial, in case an indictment be found for such perjury, and shall also cause such immediate notice of such commitment or recognizance, with the names of the witnesses so bound over, to be given to the district attorney of the county. If, on the hearing of such cause, matter or proceeding in which such perjury shall have been suspected to have been committed, any papers or documents produced by either party shall be deemed necessary to be used in the prosecution for such perjury, such court may by order detain such papers or documents from the party producing them, and direct them to be delivered to the district attorney.1 XXXV. RAPE. HAWKINS defines rape to be the having carnal knowledge of a woman by force and against her will.2 BLACKSTONE says that rape is an offence against the female part of his majesty's subjects, but attended with greater aggravation than that of forcible marriage, and is the crime of carnal knowledge of a woman, forcibly and against her will.3 EAST defines the offence to be the unlawful carnal knowledge of a woman by force and against her will.4 Lord HALE says, "That rape is a most detestable crime, and therefore, ought to be severely and impartially punished with death; but, it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent." He then mentions two remarkable cases of malicious prosecution for this crime that had come to his knowledge, and among them one case where, although the rape was fully sworn, it turned out, upon inspection, to be physically impossible that the party accused could have been guilty of the offence, and concludes: "I mention these instances that we may be the more cautious upon trials of offences of this nature, whenever the court and jury may, with so much ease, be imposed upon without great care and vigilance; the heniousness of the offence many times transporting the judge and jury with so much indignation that they are, over hastily, carried to the conviction of the person accused thereof by the confident testimony of malicious and false witnesses."5 1. The Statutory Offence. The New York statutes do not prescribe any formal definition of rape, but provide that persons shall be punished who shall be convicted of rape: 12 R. S., 681, § 7. 4 Bla. Com., § 210. 1 East. P. C., ch. 4, § 34. • 1 Hale, 635. • Ch. 41, § 2. 1. By carnally and unlawfully knowing any female child under the age of ten years; or, 2. By forcibly ravishing any woman of the age of ten years or upwards.1 Another section of the same statute provides, that every person who shall have carnal knowledge of any woman above the age of ten years, without her consent, by administering to her any substance or liquid, which shall produce such stupor or imbecility of mind, or weakness of body as to prevent effectual resistance, shall, upon conviction, be punished by imprisonment in a State prison.2 2. By Whom the Offence may be Committed. By the English common law, a boy under the age of fourteen years was supposed incapable of committing a rape, and, therefore, he could neither be convicted of the offence, nor of an assault with intent to commit it. In other felonies, malitia supplet aetetam; yet as to this particular species of felony the law supposes an imbecility of body as well as of mind. It has been said that this rule was established in ancient times in favor of life, on account of the punishment for rape being death. In the People v. Randolph, GREEN, J., says: "The proposi tion is neither disputed nor disputable that by the common law of England, as it has been settled for several centuries, a person under fourteen years of age is conclusively presumed to be incapable of committing the crime of rape. The jury have found that, at the time laid in the indictment, the prisoner was under that age and have convicted him of this crime, and the question arises, is the rule above stated a part of the law of this State? It was held, in 14 Ohio R., 222, that the rule, as administered in England, was not applicable in that State, and that the presumption that an infant, under fourteen years of age, was incapable of committing a rape might be rebutted by proof that he had arrived at puberty. I agree entirely with the learned judge, who delivered the opinion of the court in that case, as to the soundness of the rule laid down by him."4 1 2 R. S., 663, § 22. • Id., § 23. 4 Blac., 212; R. v. 1 2 Park., 176. Aldershow, 3 C. & P., 396; 1 Hale, 630. |