trespass or other injury to private rights or property.] Under another section of the revised statutes, this would amount to murder, if committed in the perpetration of a felony: if, in doing any other criminal act, to manslaughter in the first degree. At common law, the killing of another by a person committing a trespass is manslaughter.(p) And if a man be doing an unlawful act, though not intending bodily harm to any one; as, if he be throwing stones at another's horse, and hit a person and kill him, it is manslaughter. (4) So if a person, in sport, throw stones down a coal-pit, whereby a man is killed, it is manslaughter. It is not necessary in order to render the homicide manslaughter, that the act in the performance of which death is caused, should be a felony, or even a misdemeanor. It is enough if it be an act contrary to law. (r)

Of manslaughter in the THIRD degree: 3. Where the owner of a mischievous animal, knowing its propensities, wilfully suffers it to go at large, or keeps it without ordinary care; and the animal, while so at large or not confined, kills any one who has taken all the precautions that circumstances permit, to avoid the animal.] The rule at common law, previous to the revised statutes, was, that if a man has a beast that is used to do mischief, and he knowing it, suffers it to go abroad, and it kills a man, it is manslaughter in the owner.(s) And if a man purposely turn such an animal loose, knowing its nature, though barely to frighten people and make what is called sport, if death ensues, it is as much murder as if he had incited a dog or bear to worry the party.(t) The mere suffering of a fierce and dangerous animal, as a fierce bull dog, which is used to bite people, to go at large, is an indictable offence, at common law, even though no injury ensues.(u)

Of manslaughter in the THIRD degree: 4. Where any one navigating any boat or vessel for gain, wilfully or negligently receives so many passengers, or so much lading as to sink or overset the vessel, and thereby any one is drowned or otherwise killed.] This is a species of criminal negligence, which was not properly provided for in this state previous to the adoption of the revised statutes. The above provision is similar to that contained in the English statute, 10 Geo. II. ch. 31, § 8.(v)

Of manslaughter in the THIRD degree: 5. Where any one having charge of a steam-boat for passengers, or having charge of its boilers, &c. from ignorance or gross neglect, or to excel in speed any other boat, al

lows to be created such an undue quantity of steam as to burst or break the boiler, &c. whereby any one is killed.] This also is an offence for which no punishment was provided by the common law or any previous statute, in this state.

Of manslaughter in the THIRD degree: 6. Where a physician, while intoxicated, does any act that causes the death of his patient, without a design to effect death.] If a physician or surgeon gives his patient a potion or plaster to cure him, which, contrary to expectation, kills him, this is neither murder nor manslaughter at common law; and the rule is not confined to regular physicians or surgeons. (w) But whether the party be licensed or unlicensed, if he displays gross ignorance, or criminal inattention, or culpable rashness, in the treatment of his patient, he is criminally responsible. Indeed, there may be cases where, from the manner of the operation, even malice may be inferred.(x) To support the charge of manslaughter, it must appear that there was gross ignorance or inattention to human life. (y) In Long's case, (2) a case was cited by counsel as having occurred on the northern circuit, where a man who was drunk went and delivered a woman, who by his mismanagement died, and he was sentenced to six months' imprisonment. And where a person grossly ignorant undertook to deliver a woman, and killed the child in the course of the delivery, it was held that he was rightly convicted of manslaughter.(a)

Manslaughter in the third degree is punishable by imprisonment in a state prison, not less than two nor more than four years.(b)

4th. Of manslaughter in the FOURTH degree, by--1. The involuntary killing of another by any weapon, or by means neither cruel nor unusual, in the heat of passion, in cases not declared to be excusable homicide.] It will be recollected the statute has recognized three distinct grades of manslaughter committed "in the heat of passion," viz. 1. When done in a cruel and unusual manner; 2. When effected by a dangerous weapon; 3. When effected by any weapon. The reader is referred to the remarks made in a former part of this work, under the section relative to offences of the first description.(c)

Of manslaughter in the FOURTH degree: 2. Every other killing of a human being by the act, procurement, or culpable negligence of another

(w) Roscoe's Cr. Ev. 588.

(a) Senior's case, 1 Moody's C. C. 346.

(z) Idem. 3 Car. & Payne, 633. 4 1 Moo. & Rob. 405. Lewin's C. C. 181. id. 407.

(y) 3 Car. & P. 635. 4 id. 407.

(z) 4 Car. & P. 404.

(b) 2 R. S. 662, § 20, sub. 3.

(c) Ante, p. 60.

when such killing is not justifiable or excusable, or is not declared by the statute to be murder or manslaughter in a higher degree.] Respecting this section, the revisers remark, that it was intended to guard against all danger of omission of any case, and to include some that are anomalous.

It is proper, in this place, to call the reader's attention to a confusion or indistinctness of expression in the statutory definitions of murder and of manslaughter in the fourth degree.

An essential part of the definition of murder is, that it is the commission of certain acts in cases in which they would not be manslaughter.(d) And an equally essential part of the definition of manslaughter in the fourth degree is, that it be a homicide, that is not declared to be murder.(e) So that to know what murder, the greatest of these offences, is, we must first learn what is manslaughter: and when we turn to the definition of manslaughter in the fourth degree, the least of these offences, we cannot discover its meaning till we learn the meaning of murder. Thus the revisers have here been defining in a circle. The intention is, however, sufficiently plain, that manslaughter in the fourth degree is any unjustifiable or inexcusable homicide less culpable than the other degrees of manslaughter: and then the definition of murder also is freed from confusion.(f)

Manslaughter in the fourth degree is punishable by imprisonment in a state prison not more than two years, in a county jail not more than one year, or by a fine of not more than $1000.(g)

A person may be convicted of an attempt to commit manslaughter, where it appears that he did any act towards the commission of the offence, but failed, or was prevented or intercepted in perpetrating his design.(h)

Indictment.] The indictment for manslaughter is the same as for murder, omitting the words "of his malice aforethought" wherever they occur, and substituting the word "slay," for the word "murder," in the latter part of the indictment. (¿)

Evidence.] From what has been already stated, it will be seen what, under different circumstances, will be necessary to support the allegations of the indictment, and what allegations are required to be proved.

(d) 2 R. S. 657, § 5.

(e) Id. 662, § 19.

(f) See 4 Black. Com. 191, n. 18, ed. 1832.

(g) 2 R. S. 663, § 21.
(h) Id. 698, § 3.
(i) Matt. Dig. 503.

2. RAPE.

Rape is defined to be the carnal knowledge of any woman above the age of ten years, against her will; and of a woman child under the age of ten years, either with or against her will.(k)

This detestable crime has been, in most countries, punished with death. It was so punished by the Jewish law, in case the damsel was betrothed to another. (1) By the civil law, it is punished with death and the confiscation of goods. (m) It is still a capital offence by the laws of England and of many of our sister states.

By our revised statutes it is provided that every person who shall be convicted of rape, either, 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, shall be punished by imprisonment in a state prison not less than ten years.(n) And 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 such imbecility of mind or weakness of body as to prevent effectual resistance, may be imprisoned not more than five years.(0)

1st. Of Rape on women above the age of ten years.] Respecting rape, Lord Hale observes, that it is an accusation easily to be made, hard to be proved, and harder to be defended by the party accused, though innocent; and he adduces two instances within his own knowledge, where the evidence was most positive against the prisoners; in one of which it was impossible that he could be guilty.(p)

It is the essential feature of the crime of rape, that it must be against the will of the female on whom it is committed; and its atrocity is not mitigated by showing that she at last yielded to the violence, if such her consent was forced by duress, or threats of murder.(9) And it will not be any excuse that she was first taken with her own consent, if she were afterwards forced against her will; nor will it be any excuse that she consented after the fact, or that she was a common strumpet, or the concubine of the ravisher; for she is still under the protection of the law, and may not be forced. (r) Circumstances of this kind, however, though they do not necessarily prevent the offence from amounting to a rape,

(k) 1 Hale's P. C. 628. 3 Inst. 60.

Hawk. P. C. b. 1, c. 41, s. 12.

(1) Deut. xxii, 25.

(m) 4 Black. Com. 210.

(n) 2 R. S. 663, § 22.

(0) Id. § 23.

(p) 1 Hale, 635, 6.

(9) 1 Hawk. P. C. c. 41, s. 6.

(r) 1 Hawk. P. C. c. 41, s. 7. 1 East's

P. C. 444. 4 Black. Com. 213.

yet are material to be left to the jury, in favor of the accused, especially in doubtful cases. (s) The notion that if the woman conceived, it could not be a rape, because she must, in that case, have consented, appears to be quite exploded. (t)

A man cannot be guilty of a rape upon his own wife; for the matrimonial consent cannot be retracted; but he may be guilty as a principal by assisting another person to commit a rape upon his wife.(u)

With respect to the carnal knowledge necessary to constitute this offence, it is well settled at common law, that there must be a penetration, or res in rc. But a very slight penetration is sufficient; even though it may not be attended with the deprivation of the marks of virginity.(v) But in a late case, where it appeared that the hymen was not ruptured, Baron Gurney held that the penetration was not sufficient to constitute the offence.(w)

It was formerly doubted whether proof of emission, as well as of penetration was not necessary. But it is provided by a recent statute(x) in England, that it is not necessary to prove emission, in cases of this kind. And our revised statutes contain a provision that proof of actual penetration into the body shall be sufficient to sustain an indictment for rape or for the crime against nature.(y) And this seems to be a very reasonable rule; for the essence of this crime is the violence done to the person and feelings of the woman, which is completed by penetration without emission.(z)

Having carnal kn wledge of a woman under circumstances which induce her to suppose it is her husband, has been held by a majority of the judges in England not to amount to a rape; but several of the majority intimated that, should the point occur again, they would direct the jury to find a special verdict. (a) In this country it seems to have been considered that it is as much a rape, when effected thus by stratagem, as if done by force.(b) And the above mentioned section of the revised statutes, providing for the punishment of a person who shall have carnal knowledge of a woman above the age of ten years, without her consent, by means of administering to her any substance or liquid, is in analogy with this principle.

There are some general rules respecting this crime which it will always

(s) 1 East, 445.

(t) 1 Hale. 631. 1 Hawk. c. 41, § 8. (u) 1 St. Tr. 387. 1 Hale, 629. (v) 1 Russ. on Cr. 560, notes (n) (0). 1 Const. Rep. 354.

(w) 5 Car. & P. Rep. 321. See also Beck's Med. Jurisp. 53.

(x) 9 Geo. 4, ch. 31, s. 18.
(y) 2 R. S. 735, § 18.
(z) Addis. Rep. 143.
(a) Russ. & Ry. Rep. 487.

(b) People v. Barton, 1 Wheeler's Cr. Ca. 381, n. And see 4 Black. Com. 214, note (16), Chitty's edition.