Rape-Unlawful carnal knowledge.

defendant on trial for a rape or for an assault and battery, he elected to try him for rape. There was a verdict of guilty of assault and battery; and on the defendant's motion, a new trial was granted. Held, that the indictment charged only one substantive offense, that of a rape. Held, also, that the election to place the defendant on trial for a rape, with the order requiring such election, was a nullity, and did not take out of the case the charge of assault and battery necessarily included in the charge of a rape, which minor offense need not be separately charged in an indictment for the greater. Held, also, that the defendant took said new trial as to the whole case, and it was error to sustain his objection to being tried thereon for a rape, and to put him on trial for assault and battery. 52 Ind. 187.

Where the competency of a child under ten years of age as a witness is challenged, the decision of the court must be founded on the judge's own opinion, derived exclusively from an examination made by him in public, as a part of the trial. 31 Ind. 90.

On the trial of an indictment for rape, the prosecuting witness was a child only six years old at the time of the trial, sixteen months after the alleged offense. The competency of the witness being challenged, the court examined her, and, not being satisfied, appointed two gentlemen, who retired with the child to a private room, and, after some time, returned and reported to the court that "in their opinion her testimony ought to be heard, but received with great allowance," whereupon she was allowed to testify over the defendant's objection. Held, that for this action of the court, the defendant was entitled to a new trial. Held, also, that the court should have acted on its own judgment, upon a public examination when the defendant was present. Held, also, that courts should be very cautious in admitting as witnesses children of such tender years. Ibid.

If the indictment leave out the word "unlawfully," but be in accordance with the common-law definition of the offense, it is sufficient. 7 Blackf. 186.

Declaration of injured female.—On the trial of a prosecution for assault and battery with intent to commit a rape, statements made, in the absence of the defendant, by the female alleged to have been so injured, not allowed to testify on account of her immature age, elicited soon after the transaction by questions put to her by her

Rape-Unlawful carnal knowledge.

parents, are not admissible in evidence to prove the crime charged. 32 Ind. 81.

The state may show, on the trial of an indictment for a rape, or for an assault and battery, with intent to commit a rape, either by the prosecuting witness or any other witness, that the person upon whom the crime was perpetrated made complaint of the outrage soon after its commission, and when, where, and to whom it was made; but may not show the particulars of the narrative, or the person charged, though the defense may do so, and thus authorize the state to pursue the investigation. The usual question on direct examination is, simply: Did she make the complaint? And the answer is yes or no. The statement is only evidence in corroboration of her testimony, and not proper where she is not a witness. If evidence has been given impeaching the prosecuting witness, evidence may be given that out of court her statement has corresponded with her evidence before the jury. 38 Ind. 39.

A husband can not be guilty of a rape upon his wife. 1 Hale, 629. A defendant, under the age of fourteen years, is presumed by law to be incapable of committing a rape. 1 Hale, 631. But he may be convicted of an assault and battery. 2 Moody C. C. 122; 9 C. & P. 366. And evidence is not admissible against him to show that he has in fact attained the age of puberty. 8 C. & P. 736; 9 Id. 118. But, in Ohio, this presumption may be rebutted by proof that such person has arrived at the age of puberty. 14 Ohio, 222. It is at the age of puberty, and not at the age of majority, that a female ceases to be a "child," and becomes a "woman," within the meaning of the statute defining the crime of rape. 22 Ohio St. 122.

Rape upon a female child-Assault and battery-Under an indictment for carnal knowledge and abuse of a female child under ten years of age, the defendant may be convicted of a simple assault, notwithstanding the child consented. The offense charged is rape, and the child has no capacity to consent. People v. McDonald, 5 Cooley (Mich.), 150; in Am. L. R. (N. S.) Vol. I, 185.

The term "6 against her will" simply means "without her consent;" and rape is proved whenever it is shown that carnal intercourse was effected with a woman without her consent, although no positive resistance of the will can be shown. And, in most instances, it will be rape if the consent of the female is obtained by fear, ignorance of the act, mistake or imposition of the person, artificial stupefaction, etc. Whart. Crim. Law, $$ 1141–1147.

Impeachment.-Evidence is not admissible that prior to the com

Malicious Mayhem.

mission of the alleged rape, the prosecuting witness had sexual intercourse with a third person. 58 Ind. 355.

SEC. 5. MALICIOUS MAYHEM.

SEC. 12. Every person who, on purpose and of malice aforethought, shall unlawfully disable the tongue, put out an eye, cut or bite off the nose, ear, lip, or other member of any person, with intent to disfigure or disable such person, shall be deemed guilty of malicious mayhem, and, upon conviction thereof, shall be imprisoned in the state prison for a term not less than two nor more than fourteen years, and be fined not exceeding one thousand dollars. 2 R. S. 429.

CHARGE.

in the year

at said

That A. B., on the day of county, feloniously, purposely, and of his malice aforethought, bit off the ear of C. D., with intent, then and there, feloniously, purposely, and of his malice aforethought, to disfigure the said C. D. [or, cut off the right hand of C. D., with intent, then and there, feloniously, purposely, and with malice aforethought, to disfigure the said C. D.] Bicknell's Crim. Pr. 301.

Mayhem at common law was an injury to any part of a man's body which might render him less able in fighting to defend himself or annoy his adversary. Whart. Crim. Law, § 1171.

But under our statute it embraces many other injuries. Bicknell's Crim. Pr. 302.

The intent must be proved as laid; therefore it may be necessary to have different counts in the indictment-one charging an intent to disfigure and another an intent to disable. Bicknell's Crim. Pr. 301.

"With malice aforethought."-This means a premeditated intention to disfigure or disable; and such malice is proved in the same way as a premeditated intention to kill is proved in case of 'murder-that is, either expressly or impliedly-and may be inferred from the nature of the act itself.

Ibid.

Son assault is a good defense to an indictment for mayhem; but the defense can only be sustained by proof that the resistance was in proportion to the injury offered. 4 Black f. 546.

Abduction-Seduction.

SEC. 6. ABDUCTION-SEDUCTION.

1. Abduction for prostitution.

SEC. 16. If any person shall entice or take any female of previous chaste character, from wherever she may be, to a house of ill-fame, or elsewhere, for the purpose of prostitution, and every person who shall advise or assist in such abduction, shall be imprisoned in the state prison not less than two nor more than five years, or may be imprisoned in the county jail not exceeding one year, and be fined not exceeding five hundred dollars; but, in such case, the testimony of such female shall not be sufficient, unless supported by other evidence, corroborating to the same extent as is required in cases of perjury as to the principal witness. 2 R. S. 431.

That A. B., on the county, unlawfully and

CHARGE.

at said

day of —, in the year
feloniously took away one C. D., a female

of previously chaste character, from the town of, in said
county, to the town of — in said county, for the purpose of un-
lawfully and feloniously prostituting and defiling her, the said
C. D.

"Illicit sexual intercourse" not sufficient.-An indictment charging the defendant with the abduction of a female, "for the purpose of having illicit sexual intercourse with her," is not sufficient under the statute. It must charge the abduction "for the purpose of prostitution." 52 Ind. 526.

According to this decision, the form given by Bicknell (Bicknell's Crim. Pr. 310) is bad.

"Previous chaste character."-To sustain this prosecution, the female must have possessed actual personal virtue, and, therefore, the defendant may show acts of illicit intercourse by her, previous to the alleged abduction. 52 Ind. 426.

2. Seduction.

SEC. 15. Any person who, under the promise of marriage, shall have illicit carnal intercourse with any female of good

1

2

Abduction-Seduction.

repute for chastity, under the age of twenty-one years, shall be deemed guilty of seduction, and, upon conviction, shall be imprisoned in the state prison for not less than one nor more than three years, and fined not exceeding five hundred dollars; or be imprisoned in the county jail not exceeding six months; but, in such case, the evidence of the female must be corroborated to the extent required as to the principal witness in the cases of perjury. 2 R. S. 431.

CHARGE.

in the year

That A. B., on the day of at said county, feloniously had illicit sexual intercourse with, and carnal knowledge of, C. D., a female of good repute for chastity, and under the age of twenty-one years, by means of a promise of marriage previously made by the said A. B. to the said C. D. Bicknels Crim. Pr. 307.

The promise of marriage may be made expressly or impliedly.-Frequent visits to an unmarried woman, accompanying her to church and other places, and generally such attentions as commonly accompany a promise of marriage, will authorize a jury to infer the existence of such a promise, in criminal as well as in civil cases. 2 Ind. 403.

Criminal connection may take place between the parties without seduetion. 8 Blackf. 123. See 13 Ind. 46.

An indictment is good, which states, in substance, that the defendant, on, etc., at, etc., had illicit carnal intercourse with a female (naming her) of good repute for chastity, and under the age of twenty-one years, under a promise of marriage made by the defendant to said female. 13 Ind. 565.

An indictment charging that the seduction was done "by means of a promise of marriage," instead of “under a promise of marriage," is good. 47 Ind. 17.

The promise of marriage may not be technically valid, for it is no defense that the defendant was married, and can not make such a promise. Of course, consent on the part of the female is no defense. A subsequent marriage of the parties is a defense. A belief that the female was above the limited age, or that she was unchaste, is no defense. Whart. Crim. Law, §§ 2673-2673c.