ner or under any pretense; or gathering or picking rags, or collecting cigar stumps, bones or refuse from markets; or 2. Not having any home or other place of abode or proper guardianship; or who has been abandoned or improperly exposed or neglected, by its parents or other person or persons having it in charge, or being in a state of want or suffering; or 3. Destitute of means of support, being an orphan, or living or having lived with or in custody of a parent or guardian who has been sentenced to imprisonment for crime, or who has been convicted of a crime against the person of such child, or has been adjudged an habitual criminal; or 4. Frequenting or being in the company of reputed thieves or prostitutes, or in a reputed house of prostitution or assignation, or living in such a house either with or without its parent or guardian, or being in concert saloons, dance-houses, theatres, museums or other places of entertainment, or places where wines, malt or spirituous liquors are sold, without being in charge of its parent or guardian; or playing any game of chance or skill in any place wherein or adjacent to which any beer, ale, wine or liquor is sold or given away, or being in any such place; or 5. Coming within any of the descriptions of children mentioned in section two hundred and ninety-two, must be arrested and brought before a proper court or magistrate, as a vagrant, disorderly or destitute child. Such court or magistrate may commit the child to any charitable, reformatory or other institution authorized by law to receive and take charge of minors, or may make any disposition of the child such as now is or hereafter may be authorized in the cases of vagrants, truants, paupers or disorderly persons. And no commitment of a child which shall recite therein the facts upon which it is based shall be deemed invalid by reason of any neglect or omission by the court or magistrate by whom such commitment is made to file any documents, papers or proceedings relating thereto. 6. Any magistrate having criminal jurisdiction may commit temporarily to an institution authorized by law to receive children on final commitment, and to have compensation therefor from the city or county authorities, any child under the age of sixteen years who is held for trial on a criminal charge; and may, in like manner, so commit any such child held as a witness to appear on the trial of any criminal case; which institution shall thereupon receive the same, and be entitled to the like compensation proportionally therefor as on final commitment, but subject to the order of the court as to the time of detention and discharge of the child. Any such child convicted of any misdemeanor shall be finally committed to some such institution, and not to any prison, or jail, or penitentiary, longer than is necessary for its transfer thereto. No child under restraint or conviction, actually or apparently under the age of sixteen years, shall be placed in any prison or place of confinement, or in any court-room, 6.7 or in any vehicle for transportation in company with Zadults charged with or convicted of crime, except in the presence of a proper official. [Am'd ch. 46 of 1884.] Peo. ex rel. Perkuson v. Sisters of St. Dominick, 2 N. Y. Cr., 528; Ex parte Haller, 12 Hun, 131. See Code Cr. Proc, § 893. § 292. Certain employments of child prohibited.— A person who employs, or causes to be employed, or who exhibits, uses or has in his custody for the purpose of exhibiting or employing any child apparently or actually under the age of sixteen years, or who, having the care, custody or control of such a child as parent, relative, guardian, employer or otherwise, sells, lets out, gives away or in any way procures or consents to the employment or exhibition of such a child either 1. As a rope or wire walker, dancer, gymnast, contortionist, rider or acrobat; or, 2. In begging or receiving alms, or in any mendicant occupation; or, 3. In peddling, singing or playing upon a musical instrument, or in a theatrical exhibition, or in any wandering occupation; or, 4. In any indecent or immore exhibition or practice; or, 5. In any practice or exhibition dangerous or injurious to the life, limb, health or morals of the child; Is guilty of a misdemeanor. But this section does not apply to the employment of any child as a singer or musician in a church, school or academy, or in teaching or learning the science or practice of music, or as a musician in any concert with the written consent of the mayor of the city, or the president of the board of trustees of the village where such concert takes place. [Am'd ch. 46 of 1884.] § 293. Duty of officers of society.-A constable or police officer must, and any agent or officer of an incorporated Society for the prevention of Cruelty to Children may, arrest and bring before a court or magistrate aving jurisdiction, any person offending against any of the provisions of this chapter, and any minor coming within any of the descriptions of children mentioned in section 291 or in section 292. Such constable, police officer or agent may interfere to prevent the perpetration in his presence of any act forbidden by this chapter A person who obstructs or interferes with any officer or agent of such society in the exercise of his authority under this chapter, is guilty of a misdemeanor. See Code Cr. Proc., 56. CHAPTER IV. ABORTION AND CONCEALING DEATH OF INFANT SEC. 294. Abortion defined. 295. Pregnant woman attempting abortion. 296. Concealing birth. 297. Selling drugs, etc. § 294. Abortion defined.-A person who, with intent thereby to produce the miscarriage of a woman, unless the same is necessary to preserve the life of the woman, or of the child with which she is pregnant, either 1. Prescribes, supplies, or administers to a woman, whether pregnant or not, or advises or causes a woman to take any medicine, drug, or substance; or 2. Uses, or causes to be used, any instrument or other means; Is guilty of abortion, and is punishable by imprisonment in a state prison for not more than four years, or in a county jail for not more than one year. See § 191, supra; 318 infra. Medicine need not be taken. State v. Murphy, 3 Dutch, 112. Prisoner need not be present at taking. Reg. v. Wilson, 1 Dears & B., 127. See Reg. v. Farrow, 40 Eng., L. Eq., 550. Reg. v. Fretwell, 9 C ,C.C., 152. See State v. Howard, 32 Vt., 380. Peo. v. Davis, 56 N. Y., 95; Frazer v. Peo., 54 Bar., 306; Lohman v. Peo., 1 N. Y., 383; Hunt v. Peo., 3 Park., 569; Peo. v. Stockham, 1 id., 424; Mongeon v. Peo., 55 id., 613; S. C., 2 T. & C., 128; Davis v. Peo., 2 T. & C., 212; Evans v. Peo., 49 N.Y., 86, 87; Watson v. State (Tex.), 22 Alb. L. J., 318. § 295. Pregnant woman attempting abortion.-A pregnant woman, who takes any medicine, drug, or substance, or uses or submits to the use of any instrument or other means, with intent thereby to produce her own miscarriage, unless the same is necessary to preserve her life, or that of the child whereof she is pregnant, is punishable by imprisonment for not less than one year, nor more than four years. See 194, supra. Defendant to justify use of instrument. Bradford v. Peo., 20 Hun, 309. See Eckhart v. Peo., 22 Hun, 525. § 296. Concealing birth.-A person who endeavors to conceal the birth of a child, by any disposition of the dead body of the child, whether the child died before or after its birth, is guilty of a misdemeanor. See § 693, post. Reg. v. Bird, 2 Carr & K., 817; Reg. v. Goode, 6 ib., 318; Reg. v. Barriman, ib., 388; Reg. v. ib., 391; Reg. v. Perry, ib., 351; Reg. v. Opie, 8 Cox Cr. C., 332. § 297. Selling drugs, etc.-A person who manufactures, gives or sells an instrument, a medicine or drug, or any other substance, with intent that the same may be unlawfully used in procuring the miscarriage of a woman, is guilty of a felony. See § 191, supra; §§ 318, 321, post. CHAPTER V. BIGAMY, INCEST AND THE CRIME AGAINST NATURE. SEC. 298. Bigamy defined; how punished. 299. Id.; exceptions. 300. Indicting for bigamy. 303. Crime against nature. § 298. Bigamy defined; how punished.-A person who, having a husband or a wife living, marries another person, is guilty of bigamy, and is punishable by imprisonment in a penitentiary or state prison for not more than five years. Second marriage out of state. Peo. v. Mosher, 2 Park., 195. What a sufficient marriage. Hayes v. Peo., 25 N. Y., 390; S. C., 5 Park., 325. No offense unless second marriage took place within state. Peo. v. Mosher, supra; McReynolds v. State, 5 Cold (Tenn.), 18. After divorce. Baker v. Peo., 2 Hill, 325. Gahagan v. Peo., 1 Park., 378; Fleming v. Peo., 27 N. Y., 329, 331; Peo. v. Baker, 76 N. Y., 78; Peo. v. Faber, 92 N. Y., 146; S. C., 29 Hun, 320, rev'g Peo. v. Hovey, b Bar., 117. Void marriage. Peo. v. Chase, 27 Hun, 256; 28 ib., 310. Advice of counsel. Peo. v. Weed, 29 Hun, 628. § 299. Id.; exceptions.-The last section does not extend, 1. To a person whose former husband or wife has been absent for five years successively then last past, without being known to him or her within that time to be living, and believed by him or her to be dead; or 2. To a person whose former marriage has been pro 93 INCEST. CRIME AGAINST NATURE. §§ 300-304. nounced void, or annulled, or dissolved, by the judgment of a court of competent jurisdiction, for a cause other than his or her adultery; or 3. To a person who being divorced for his or her adultery has received from the court which pronounced the divorce, permission to marry again; or 4. To a person whose former husband or wife has been sentenced to imprisonment for life. Invalid foreign divorce, no defense to indictment for bigamy. Peo. v. Baker, 76 N. Y., 78. Eagle's case, 3 Abb. Pr., 224. Sub. 1. Van Pelt's case, 1 C. H. Rec., 137. Hull v. State (Tex.), 22 Alb. L. J., 38. Sub. 2. Wait v. Wait, 4 N. Y., 95; Peo. v. Faber, sup.; Baker v. Peo., 2 Hill, 325. § 300. Indicting for bigamy.- An indictment for bigamy may be found in the county in which the defendant is arrested, and the like proceedings, including the trial, judgment, and conviction, may be had in that county, as if the offense were committed therein. See § 376, post. Collins v. Peo., 1 Hun, 610; S. C. 4 S. C., 77; Houser v. Peo., 46 Barb., 33; King v. Peo., 5 Hun, 297; Peo. v. Mosher, supra. § 301. Punishment of consort.-A person who knowingly enters into a marriage with another, which is prohibited to the latter by the foregoing provisions of this chapter, is punishable by imprisonment in a penitentiary or state prison, for not more than five years, or by a fine of not more than one thousand dollars, or both. Sauser v. Peo., 8 Hun, 302. $ 302. Incest. When persons, within the degrees of consanguinity, within which marriages are declared by law to be incestuous and void, intermarry or commit adultery or fornication with each other, each of them is punishable by imprisonment for not more than ten years, Peo. v. Harriden, 1 Park., 344; State v. Schaumhurst, 34 Ia., 547; Peo. v. Murray, 14 Cal., 159; Chancellor v. State, 47 Miss., 278; Morgan v. State, 11 Ala., 289; Williams v. State, 2 Carter, 439; State v. Bullinger, 54 Mo., 142. Party cannot, by same act, commit both rape and incest. Iowa v. Thomas, 21 Alb. L. J., 498. § 303. Crime against nature.-A person who commits the detestable and abominable crime against nature, with mankind or with a beast, or attempts sexual intercourse with a dead body, is punishable by imprisonment for not less than five, nor more than twenty years. § 304. Penetration sufficient. Any sexual penetration, however slight, is sufficient to complete the crime specified in the last section. |