wound, that he is no longer by it disfigured in personal appearance, or disabled in any member or organ of his body, or affected in physical vigor, no conviction for maiming can be had; but the defendant may be convicted of assault in any degree.

212. Indictment, where triable.

213. Effect of consent of injured person.

214. Selling services of person.

215. Removing from this state persons held to service in another state. 216. Penalty imposed on judicial officers.

§ 211. Kidnapping defined.—A person who willfully,

1. Seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or imprisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service or kept or detained, against his will; or

2. Leads, takes, entices away, or detains a child under the age of sixteen years with intent to keep or conceal it from its parent, guardian, or other person having the lawful care or control thereof, or to extort or obtain money or reward for the return or disposition of the child, or with intent to steal any article about or on the person of the child or, [AMD. CH. 145 of 1888.]

3. Abducts, entices, or by force or fraud unlawfully takes, or carries away another, at or from a place without the state, or procures, advises, aids, or abets such an abduction, enticing, taking, or carrying away, and afterward sends, brings, has, or keeps such person, or causes him to be kept or secreted within this state;

Is guilty of kidnapping, and is punishable by imprisonment for not more than fifteen years.

See § 282, post.

Hadden v. People, 25 N Y. 372; People v. Ruloff, 3 Park. 126; People v. Merrill, 2 Park. 590; S. C., 14 N. Y. 76; Nash v. Benedict, 25 Wend. 645.

Subd. 1. Thompson's case, 2 C. H. Rec. 120; Pulford's case, 4 id. 172; Hadden v. People, 25 N. Y. 373; People v. De Leon, 109 N. Y. 228, aff'g 47 Hun, 308; Mandeville v. Guernsey, 51 Barb. 99.

Subd. 2. People v. Navagh, 41 Hun, 188; 4 N. Y. Cr. 295; Kauffman v. People, 11 Hun, 82; People v. Tinsdale, 10 Abb. (N. S.) 374; People v. Brunnell, 18 How. 443; Carpenter v. People, 8 Barb. 603; Moody v. People, 20 Ill. 315; Commonwealth v. Brooks, 9 Gray, 299; State v. Rollins, 8 N. H. 550; United States v. Ancarola, 1 Fed. Rep'r. 676; Manes v. State, 20 Texas, 38; Nutt v. State, 19 id. 340. See People v. Frink, 41 Hun, 188; 4 N. Y. State Rep'r, 162; People v. Fitzpatrick, 57 Hun, 461; 32 N. Y. State Rep'r, 1013.

§ 212. Indictment, where triable.-An indictment for kidnapping may be tried either in the county in which the offense was committed, or in any county through or in which the person kidnapped or confined was taken or kept, while under confinement or restraint.

§ 213. Effect of consent of injured person.-Upon a trial for a violation of this chapter, the consent thereto of the person kidnapped or confined shall not be a defense, unless it appear satisfactorily to

the jury that such person was above the age of twelve years, and that the consent was not extorted by threats or duress.

People v. De Leon, 109 N. Y. 226; 47 Hun, 313.

§ 214. Selling services.-A person who, within this state or elsewhere, sells or in any manner transfers, for any term, the services or labor of any person who has been forcibly taken, inveigled, or kidnapped in or from this state, is punishable by imprisonment in a state prison not exceeding ten years.

People v. Merrill, 2 Park. 590; S. C., 14 N. Y. 75.

§ 215. Removing from this state persons held to service in another state. A person claiming that he or another is entitled to the services of a person alleged to be held to labor or service in a state or territory of the United States who, except as authorized by special statute, takes, or removes, or willfully does any act tending towards removing from this state any such person, is guilty of felony, punishable by imprisonment in the state prison not exceeding ten years, and by a penalty of five hundred dollars, recoverable in a civil action by the party aggrieved.

§ 216. Penalty imposed on judicial officers. A judge, or other public officer of this state who grants or issues any warrant, certificate or other process, in any proceeding for the removal from this state of any person claimed as held to labor or service in a state or territory of the United States, except in pursuance of the statute of this state, is guilty of a misdemeanor; and in addition to the punishment therefor prescribed by law, he forfeits five hundred dollars to the party aggrieved, recoverable in a civil action.

CHAPTER V.

ASSAULTS.

SEC. 217. Assault in first degree defined.

218. Id.; in second degree.

219. Id.; in third degree.

220. Assault in first degree, how punished.

221. Id; in second degree.

222. Id.; in third degree.

223. Use of force or violence, declared not unlawful, etc.

217 Assault in first degree defined. A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another,

1. Assaults another with a loaded fire-arm, or any other deadly weapon, or by any other means or force likely to produce death; or

2. Administers to or causes to be administered to or taken by another, poison, or any other destructive or noxious thing, so as to endanger the life of such other;

Is guilty of assault in the first degree.

When intent to kill will be inferred. Hagaman's case, 3 C. H. Rec. 73; People v. Vinegar, 2 Park. 224; Lenahan v. People, 3 Hun, 164; S. C., 5 Th. & C. 265; People v. Shaw, 1 Park. 327; Foster v. People, 50 N. Y. 598, 603; People v. Davis, 4 id. 61, 69; S. C., 18 How. 134; O'Leary v. People, id. 187, 193. A bat

tery must be intended. People v. Johnson, 9 W. Dig. 384. Statute of assault with intent to steal, still in force. Ex parte Davis, 1 N. Y. Cr. 58. Knowledge of poison. People v. Stokes, 2 N. Y. Cr. 382. Indictment, assault first degree. People v. Whedon, 2 N. Y. Cr. 518. Intent to rape. People v. Clark, 3 N. Y. Cr. 280.

Subd. 1. O'Blenis's case, 1 C. H. Rec. 117; Mulligan v. People, 5 Park. 105; People v. Carlton, 115 N. Y. 624; People v. Ryan, 55 Hun, 214; 7 N. Y. Cr. 450; People v. Dartmore, 48 Hun, 322; People v. Conner, 53 id. 353; Filkins v. People, 69 N. Y. 101; People v. Cavanaugh, 62 How. 187; People v. Sullivan, 4 N. Y. Cr. 197; People v. Gibbs, 1 id. 473; People v. Odell, 14 W. Dig. 403; State v. Keasling, 74 Iowa, 528: Trevinio v. State, 27 Tex. App. 372; People v. Morehouse, 25 N. Y. State Rep'r, 294; Dunaway v. People, 110 Ill. 333; M'Gehee v. State, 62 Miss. 772; Lacefield v. State, 34 Ark. 275; Chapman v. State, 78 Ala. 463.

Subd. 2. People v. Burgess, 45 Hun, 157; 5 N. Y. Cr. 514.

See People v. O'Connell, 60 Hun, 111; 38 N. Y. State Rep'r, 108; Same v. Same, 35 id. 940; People v. Ryan, 55 Hun, 215; 27 N. Y. State Rep'r, 917; People v. Terrell, 33 id. 370.

§ 218. Id.; in second degree.- A person who, under circumstances not amounting to the crime specified in the last section,

1. With intent to injure, unlawfully administers to, or causes to be administered to, or taken by, another, poison, or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health; or

2. With intent thereby to enable or assist himself or any other person to commit any crime, administers to or causes to be administered to, or taken by another, chloroform, ether, laudanum, or any other intoxicating narcotic, or anæsthetic agent; or

3. Willfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon or

4. Willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; or

5. Assaults another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of any other person;

Is guilty of assault in the second degree.

See §§ 278, 358, 447, post. Different assaults near same time. 1 N. Y. Cr. 473. Evidence of previous assaults. People v. Irving, 19 W. Dig. 7. Intent explained. People v. Cooper, 3 N. Y. Cr. 117.

Subd. 3. Weapon. People v. Irving, 31 Hun, 615; 2 N. Y. Cr. 47.

Subd. 4. Filkins v. People, 69 N. Y. 101; Foland v. Johnson, 16 Abb. 235; People v. Hickey, 11 Hun, 631; People v. Cavanagh, 62 How. Pr. 87; People v. Connor, 53 Hun, 353; People v. Murray, 54 id. 407; 27 N. Y. State Rep'r, 84; People v. Ryan, 55 Hun, 220; 27 N. Y. State Rep'r, 918; People v. Terrell, 33 id. 370; People v. Sullivan, 4 N. Y. Cr. 194; People v. Sweeney, id. 275; 41 Hun, 332; People v. Cole, 2 N. Y. Cr. 112; Simpson v. State, 59 Ala. 1.

Subd. 5. Assault with intent to rape. Hays v. People, 1 Hill, 351; People v. Bransby, 32 N. Y. 525; People v. Quin, 50 Barb. 128. Levy of constable. People v. Hall, 2 N. Y. Cr. 134. See People v. Clark, 3 N. Y. Cr. 280; People v. Cooper, id. 117; People v. Shanley, 40 Hun, 477; 4 N. Y. Cr. 472; People v. Baker, 89 N. Y. 460; People v. Ryan, 28 N. Y. State Rep'r, 490; People v. Aldrich, 33 id. 791.

§ 219. Id.; in third degree.- A person who commits an assault, or an assault and battery, not such as is specified in the foregoing sections of this chapter, is guilty of assault in the third degree.

Ch. 374, § 3, of 1862, defining assault with intent to steal, not repealed. People v. Bernardo, 1 N. Y. Cr. 245. Same as assault and battery. 2 id. 168; Matter of Gray, id., 302. Slightest touching of person of another in a rude and angry manner is assault and battery. Spence v. Duffy, 1 C. H. Rec. 39; People

at once.

v. Powers, 1 Wh. Cr. C. 405. See Fairme's case, 5 C. H. Rec. 95; Goodwin's case, 6id. 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 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 N. Y. 525; Com. v. Ordway, 12 Cush. 270; State v. Eperson, 27 Mo. 255; Tarver v. State, 43 Ala. 354; State v. Gorham, 55 N. H. 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 N. Y. 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 performance 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. C. 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, 1 C. 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,