v. Powers, 1 Wh. Cr. C. 405. See Fairme's case, 5 C. H. Rec. 95; Goodwin's case, 6 id. 9; People v. Lee, 1 Wh. Cr. C. 364. Husband or wife. Gorman v. State, 42 Tex. 221; People v. Winters, 2 Park. 10; State v. Mabrey, 64 N. C. 592. Indecent assault. People v. Court of Special Sessions, 18 Hun, 330. Sprinkling paint. People v. McMurray, 1 Wh. C. C. 62. What is assault. State v. Morgan, 3 Ired. 186; U. S. v. Hand, 2 Wash. C. C. 435. By same act on several persons at once. State v. Bradley, 34 Tex. 95. Menace not sufficient without intent. People v. Yslas, 27 Cal. 630; Smith v. State, 39 Miss. 521; Yoes v. State, 4 Eng. 42; Lawson v. State, 30 Ala. 14. See State v. Sims, 3 Strobh. 137; State v. Davis, 1 Ired. 125; State v. Benedict, 11 Vt. 236; State v. Vamroy, 65 N. C. 532; Com. v. White, 110 Mass. 407; State v. Myers, 19 Iowa, 517; People v. Bransby, 32 Ν. Υ. 525; Com. v. Ordway, 12 Cush. 270; State v. Eperson, 27 Mo. 255; Tarver v. State, 43 Ala. 354; State v. Gorham, 55 Ν. Η. 152. To strike horse of person driving is not. Kirkland v. State, 43 Ind. 146; State v. Baker, 65 N. C. 332: Stockton v. State, 25 Tex. 772. Detention. Long v. Rogers, 17 Ala. 540; Keife v. State, 19 Ark. 190. Absence of intent. Warren v. State, 33 Tex. 517; State v. Blackwell, 9 Ala. 79; Richels v. State, 1 Sneed, 606; Com. v. Eyre, 1 Serg. & R. 347; State v. Com., 1 Ired. 375. Mutual consent. State v. Lonon, 13 Ark. 577; Hays v. People, 1 Hill, 351; 2 Bish. Cr. L., § 32. Must be an intent to strike to constitute assault. State v. Davis, 1 Ired. (N. C.) 121; State v. Crow, id. 375; Com. v. Eyre, 1 Serg. & R. 347; U. S. v. Hand, 2 Wash. C. C. 435. Any such intent sufficient. State v. Morgan, 3 Ired. (N C.) 186. Presenting unloaded weapon, purporting to be loaded, is assault. State v Smith, 2 Humph. 457; Rex v. Parfait, Lach. 23; East P. C. 416; Rex v. Thomas, Lach. 272; Morgan v. State, 33 Ala. 413. If party actually consents, no assault. Reg. v. Cockburn, 3 Cox C. C. 543; Reg. v. Read, 2 Carr. & K. 957; Rex v. Wehegan, 7 Cox C. C. 145. Mere omission to resist will not excuse indecent assault on child. People, ex rel. Engel, v. Special Sessions, 18 Hun, 330; Reg. v. McGavarun, 6 Cox C. C. 64; Reg. v. Case, 4 id. 220. See People v. Hale, 18 W. Dig. 213; 1 N. Y. Cr. 533; People v. Persons, 2 id. 114; People v. Moore, 50 Hun, 356; Clark v. Downing, 55 Vt. 259; Kirkland v. State, 43 Ind. 146; People v. Lee, 1 Wheeler Cr. Cas. 364; Com. v Hazenlock, 140 Mass. 125; Corning v. Corning, 6 N. Y. 97; Slattery. v. People, 1 Hun, 311; People v. Holcomb, 4 Park. 656; People v. Maschke, 2 N. Y. Cr. 168; Matter of Bray, 34 N. Y. State Rep'r, 642; People, ex rel. Brown, v. Carpenter, 123 Ν. Υ. 640.

§ 220. Assault in first degree, how punished. - Assault in the first degree is punishable by imprisonment for a term not exceeding ten years.

People v. O'Connell, 60 Hun, 113; 38 N. Y. State Rep'r, 108.

§ 221. Id.; in second degree. - Assault in the second degree is punishable by imprisonment in a penitentiary or state prison for a term not exceeding five years, or by a fine of not more than one thousand dollars, or both.

People v. Terrell, 33 N. Y. State Rep'r, 369; People v. Cole, 2 N. Y. Cr. 112. See $ 5, ante.

§ 222. Id.; in third degree. - Assault in the third degree is punishable by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or both.

See Code Cr. Proc., § 56. Distinction between misdemeanor and felony. People v. Maschke, 2 N. Y. Cr. 306. Imprisonment must be in jail or penitentiary. 19 W. Dig. 205; People v. Van Vechten, id. 291. Third degree. People v. Kelly, 97 N. Y. 212; People v. Sutton, 6 N. Y. Supp. 95; Matter of Bray, 34 N. Y. State Rep'r, 642.

See § 15, ante.

§ 223. Use of force or violence, declared not unlawful, etc.To use or attempt, or offer to use, force or violence upon or towards the person of another is not unlawful in the following cases:

1. When necessarily committed by a public officer in the perform. ance of a legal duty; or by any other person assisting him or acting by his direction;

2. When necessarily committed by any person in arresting one who has committed a felony, and delivering him to a public officer competent to receive him in custody;

3. When committed either by the party about to be injured or by another person in his aid or defense, in preventing or attempting to prevent an offense against his person, or a trespass or other unlawful interference with real or personal property in his lawful possession, if the force or violence used is not more than sufficient to prevent such offense;

4. When committed by a parent or the authorized agent of any parent, or by any guardian, master, or teacher, in the exercise of a lawful authority to restrain or correct his child, ward, apprentice or scholar, and the force or violence used is reasonable in manner and moderate in degree;

5. When committed by a carrier of passengers, or the authorized agents or servants of such carrier, or by any person assisting them, at their request, in expelling from a carriage, railway car, vessel or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force or violence used is not more than sufficient to expel the offending passenger, with a reasonable regard to his personal safety;

6. When committed by any person in preventing an idiot, lunatic, insane person, or other person of unsound mind, including persons temporarily or partially deprived of reason, from committing an act dangerous to himself or to another, or in enforcing such restraint as is necessary for the protection of his person or for his restoration to health, during such period only as shall be necessary to obtain legal authority for the restraint or custody of his person.

See §§ 26, 203, 205, supra; § 377, post; Code Cr. Proc., § 83; 19 W. Dig. 262. Assent. People v. Persons, 2 N. Y. Cr. 114.

Subd. 1. Conraddy v. People, 5 Park. 234; State v. Hull, 34 Conn. 132; Golden v. State, 1 Rich. (N. C.) 292; Com. v. Ruggles, 6 Allen, 588; Com. v. Max, 8 Phila. 422; People v. Bush, 1 Wheeler Cr. Cas. 137; Clements v. State, 60 Ala. 117.

Subd. 2. People v. Adler, 3 Park. 249; People v. Wolven, 7 N. Y. Leg. Obs. 89; People v. McArdle, 1 Wh. C. С. 101.

Subd. 3. Corey v. People, 45 Barb. 262; Wood v. Phillips, 43 N. Y. 152; People v. Gulick, Lalor, 229; Gyre v. Culver, 47 Barb. 592; Harrington v. People, 6 id. 607; Evers v. People, 3 Hun, 716; 63 N. Y. 625; Patterson v. People, 46 Barb. 625; People v. Lamb, 54 id. 342; 2 Keyes, 360; Shorter v. People, 2 N. Y. 193; People v. Sullivan, 7 id. 396; People v. Čole, 4 Park. 35; People v. Austin, 1 id. 154; Ruloff v. People, 45 N. Y. 213.

Subd. 4. By parent. State v. Alford, 68 N. C. 322. By teacher. State v. Pendergrass, 2 Dev. & Batt. 365; Gardner v. State, 4 Ind. 632; Com. v. Randall, 4 Gray, 36; Anderson v. State, 3 Head, 455; State v. Williams, 27 Vt. 755; Morris' case, 1C. H. Rec. 52. By master. People v. Shiffin 1 Wh. C. C. 512: People v. Phillips, id. 155; Hernandez v. Carnokli, 4 Duer, 642; Starr v. Liftchild, 40 Barb. 541; Van Vactor v. State, 113 Ind. 276; State v. Mixner, 45 Iowa, 248; 24 Am. Rep. 769; State v. Burton, 45 Wis. 150; Deskins v. Gose, 85 Mo. 485; Lander v. Seaver, 32 Vt. 114; Hutton v. State, 23 Tex. App. 386; Snowden v. State, 12 id. 105.

Subd. 5. Hibbard v. N. Y. & E. R. Co., 15 N. Y. 455; Sanford v. Eighth Ave. R. Co., 23 id. 343; State v. Chorin, 7 Iowa, 204; State v. Goold, 53 Me. 279; State v. Campbell, 32 N. J. 309; State v. Overton, 4 Zabr. 435; Reg. v. Mann, 6 Cox C. C. 461; People v. Gibson, 3 Park. 234; Higgins v. Watervliet, etc., R. Co., 46 N.Y. 23; Pease v. Railroad Co., 101 id. 370; Steamboat Co. v. Brockett, 121 U. S. 637.

CHAPTER VI.

ROBBERY.

SEC. 224. Robbery defined.

225. How force or fear must be employed.

226. Degree of force immaterial.

227. Taking property secretly.

228. Robbery in first degree.

229. Id.; second degree.

230. Id.; third degree.

231. Punishment of robbery in first degree.

232. Id.; in second degree.

233 Id.; in third degree.

§ 224. Robbery defined. - Robbery is the unlawful taking of personal property, from the person or in the presence of another, against his will, by means of force, or violence, or fear of injury, immediate or future, to his person or property, or the person or property of a relative or member of his family, or of any one in his company at the time of the robbery.

Must be by force or violence. Plato's case, 2 C. H. Rec. 31. What force sufficient to constitute offense. Mahony v. People, 3 Hun, 202, aff'd. Ownership. Brooks v. People, 49 N. Y. 436. Threats. People v. McDaniels, 1 Park. 198. Proof of corpus delicti. Bloomer v. People, 1 Abb. Dec. 146. See McCoskey v. People, 5 Park. 299; Mahoney v. People, 5 Lans. 329; S. C., 59 N.Y. 659; People v. McDaniels, 1 Park. 198; People v. Hall, 6 id. 642; Com. v. Holland, 1 Duvall (Ky.), 182; State v. Gorham, 55 N. H. 152; Statev. McCune, 5 R. I. 60; Long v. State, 12 Ga. 293; People v. Loop, 3 Park. 559; Quinlan v. People, 6 id. 9; People v. Rose, 52 Hun, 33; Bloomer v. People, 3 Keyes, 9; 1 Abb. App. Dec. 146; People, ex rel. Hutchinson, v. O'Neill, 21 N. Y. State Rep'r, 274; 6 N. Y. Cr. 226; People v. McGinty, 24 Hun, 62; Murphy v. People, 3 id. 114; Hope v. People, 83 N. Y. 418; Arnold v. State, 52 Ind. 281; State v. Hollywood, 41 Iowa, 200; State v. Calhoun, 72 id. 432; Evans v. State, 80 Ala. 4; Shinn v. State. 64 Ind. 13; People v. Glynn, 54 Hun, 332; People v. Barondess, 41 N. Y. State Rep'r, 662.

$225. How force or fear must be employed. - To constitute robbery, the force or fear must be employed either to obtain or retain possession of the property or to prevent or overcome resistance to the taking. If employed merely as a means of escape it does not constitute robbery.

See Hope v. People, 11 W. Dig. 386; McGinty v. People, id. 510; McCoskey v People, 5 Park. 299; People v. Foley, 9 N. Y. State Rep'r, 34; Mahoney v. People, 3 Hun, 202; People v. Glynn, 54 id. 332; Hope v. People, 83 N. Y. 418; 11 W. Dig. 386; People v. McGinty, 24 Hun, 62; 11 W. Dig. 510.

§ 226. Degree of force immaterial. - When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial.

Mahoney v. People, 3 Hun, 202; 59 N. Y. 659; People v. McGinty, 24 Hun, 6; People v. Foley, 9 N. Y. State Rep'r, 34; 27 W. Dig. 217.

§ 227. Taking property secretly. - The taking of property from the person of another is robbery, when it appears that although the taking was fully completed without his knowledge, such knowledge was prevented by the use of force or fear.

Pocket picking. Norris's case, 6 C. H. Rec. 163. Snatching articles. Ander. son's case, 1 id. 163; McCloskey v. People, 5 Park. 299; People v. Hall, 6 id. 642.

§ 228. Robbery in first degree. - An unlawful taking or compulsion, if accomplished by force or fear, in a case specified in the foregoing sections of this chapter, is robbery in the first degree, when committed by a person,

1. Being armed with a dangerous weapon; or

2. Being aided by an accomplice actually present; or

3. When the offender inflicts grievous bodily harm or injury upon the person from whose possession, or in whose presence, the prop erty is taken, or upon the wife, husband, servant, child, or inmate of the family of such person, or any one in his company at the time, in order to accomplish the robbery.

State v. Farrar, 41 N. H. 53; Moody v. People, 20 I11. 315; State v. Stoyell, 54 Me 24: People v. Parshall, 6 Park. 129; Carpenter v. People, 8 Barb. 603; Com. v Cook, 12 Metc. 93; Com. v. Nickerson, 5 Allen, 518; People v. McInerney, 5 N. Y. Cr. 48.

§ 229. Id.; second degree. -Such unlawful taking or compulsion when accomplished by force or fear, in a case specified in the foregoing sections of this chapter, but not under circumstances amounting to robbery in the first degree, is robbery in the second degree, when accomplished either

1. By the use of violence; or

2. By putting the person robbed in fear of immediate injury to his person or that of some one in his company.

People v. McDaniels, 1 Park. 198; People v. Holfelder, 5 N. Y. Cr. 179.

§ 230. Id.; third degree. -A person who robs another, under circumstances not amounting to robbery in the first or second degree, is guilty of robbery in the third degree.

§ 231. Punishment of robbery in first degree. -Robbery in the first degree is punishable by imprisonment for a term not exceeding twenty years.

§ 232. Id.; in second degree. Robbery in the second degree is punishable by imprisonment for a term not exceeding fifteen years.

§ 233. Id.; in third degree.-Robbery in the third degree is punishable by imprisonment for not more than ten years.

CHAPTER VII.

DUELS AND CHALLENGES.

SEC. 234. Dueling, defined and punished.

235. Challenger, abettor, etc.

236. Challenge defined.

237. Attempts to induce a challenge.

238. Posting for not fighting.

239. Duel outside of state.

240. Where such person may be indicted and tried.

241. Witnesses.

§ 234. Dueling, defined and punished. - A person who fights a duel or engages in any combat with another, with deadly weapons, by previous agreement, or upon a previous quarrel, although no death or wound ensues, is punishable by imprisonment for a term not exceeding ten years. A person convicted under this section is thereafter incapable of holding, or of being elected or appointed to

any office or place of trust or emolument, civil or military, within the state.

See § 458, post. Herriott v. State, 1 McMullan, 126; Barker v. People, 3 Cow. 686; S. C., 20 Johns. 457; Angler v. People, 34 III. 486; State v. Perkins, 6 Blackf. 20; Com. v. Hart, 6 J. J. Marsh. 119.

§ 235. Challenger, abettor, etc.-A person who challenges an. other to fight a duel, or who sends a written or verbal message, purporting or intended to be a challenge to fight a duel, or an invitation to a combat with deadly weapons, or who accepts such a challenge or message, or who knowingly carries or delivers such a challenge or message, or who is present at the time appointed for such a duel or combat, or when such a duel or combat is fought, either as second, aid, or surgeon, or who advises or abets, or gives any countenance or assistance to such a duel or combat upon previous agreement, is punishable by imprisonment for not more than seven years.

Norton's case, 3 C. H. Rec. 90; Wood's case, id. 139. Form of challenge. Ives v. State, 12 Ala. 276; State v. Perkins, 6 Blackf. 20.

§ 236. Challenge defined.-Any word, spoken or written, or any sign, uttered or made to any person, expressing or implying, or intended to express or imply, a desire, request, invitation, or demand, to fight a duel, or to meet for the purpose of fighting a duel, is deemed a challenge.

See § 459, post. State v. Perkins, 6 Blackf. 20; Com. v. Tibbs, 1 Dana, 524.

§ 237. Attempts to induce a challenge. - A person guilty of sending or using to another any word or sign whatever, with intent to provoke or induce such person to give or receive a challenge to fight a duel, is guilty of a misdemeanor.

King v. Phillips, 6 East, 464; Rex v. Rice, 3 id. 581.

§ 238. Posting for not fighting. A person who posts or advertises another for not fighting a duel, or for not sending or accepting a challenge to fight a duel, or who, in writing or in print, uses reproachful or contemptuous language to or concerning any one, for not sending or accepting a challenge to fight a duel, or for not fighting a duel, is guilty of a misdemeanor.

Vermont v. Davidson, 30 Vt. 377.

§ 239. Duel outside of state. - A person who leaves this state with intent to elude any provision of this chapter, or to commit any act without this state, which is prohibited by this chapter, or who being a resident of this state, does any act without this state, which would be punishable by the provisions of this chapter, if committed within this state, is guilty of the same offense, and subject to the same punishment, as if the act had been committed, or was to have been consummated within this state.

See § 188, supra; § 461, post. Code Cr. Proc., § 133. Lex loci. Com. v. Boot, Thach. Cr. C. 390; State v. Taylor, 3 Brev. 243; Harris v. State, 58 Ga. 332; Ivey v. State, 12 Ala. 276.

§ 240, Id.; where may be indicted and tried. - A person offending against any provision of the last section may be indicted and tried in any county within this state; but the person so offending