The People agt. Wise.

Com. agt. Macomber, 3 Mass., 439; Com. agt. Keniston, 5 Pick., 420.) The necessity for section 649 becomes apparent when it is remembered that section 94 does not cover the case of a messenger, who may not in certain cases be a public officer, but may be a mere servant or employe of a public officer.

This count fails to allege (1) that the defendant was a supervisor, or (2) that he was a messenger, or (3) that he took the certificate from a messenger, or (4) that the certificate was to have been used for any legal purpose, or that such use was prevented; and, therefore, it appears on the face of this count, in the language of the Code, "that the facts stated do not constitute a crime" (Code of Crim. Pro., sec. 323).

It was a well settled rule of common-law pleading, that when the words of a document are essential ingredients of an offense, as in forgery, passing counterfeit money, selling lottery tickets, sending threatening letters, libel (Whar. Cr. Pl. and Pr. [8th ed.], sec. 167), or a challenge to fight, or for printing, publishing or distributing obscene papers (Com. agt. Tarbox, 1 Cush., 66; 66 n), the document should be set out in words and figures, and the indictment must profess to set out the paper (Com. agt. Wright, 1 Cush., 62; 2 Field's Lawyers' Briefs, sec. 348; 3 id., sec. 543); and the words "in substance" was not complying with the rule (Com. agt. Wright, supra), nor was " purport" sufficient (1 Whart. Pr. and Pl. [4th ed.], 264), and the words "to the tenor following," or or "as follows" were the proper words to use (1 Whart. Pr. and Pl., supra). If it was intended by the legislature to abolish these rules, it seems strange that special provision should be made in the Criminal Code for pleading in cases of libel (sec. 289), loss or destruction of papers in cases of forgery (sec. 290) and in perjury (Sec. 291).

It seems to me that the safer rule in all these cases not expressly provided for in the Code, is to follow the mandates of the common law pleading. If these rules prevail, both counts of the indictment would fail.

The People agt. Wise.

The defendant claims that the second count is bad on its face for repugnancy, which is defined to be "two inconsistent allegations in one pleading" (1 Bish. on Crim. Pr., sec. 489), and the argument is that as both allegations cannot be true, and there is no means of ascertaining which is meant, the whole will be as though neither existed, leaving the indictment inadequate. (1 Bish. Crim. Pr., supra). I am of opinion this rule is still in force. The Code commands the crime to be stated in the indictment plainly and concisely, and without unnecessary repetition (sec. 275), and if there be inconsistent and incongruous allegations in a count, the crime cannot be said to be stated plainly or at all.

The defendant's argument is that the charging part of the indictment alleges a tampering with a certificate of a statement relating to the result of an election, and afterwards sets forth a mere copy of a statement.

In Roberts agt. State, an indictment for forgery alleged the purport of the forged instrument to be a "check for money on the City Bank of Dallas," and also set out the instrument hæc verba, thereby showing it to be a check on a "city bank" without designation of place. It was held bad (2 Texas Court of Appeals, 4; State agt. Bean, 19 Vt., 539; Heard's Cr. Pl., 130; Downey agt. State, 4 Mo., 572).

This count was drawn on the theory that there was no discrimination in the form of returns; but there is a marked difference, and if the rules of the common law were to be applied, this count falls within the rule.

In determining this demurrer we are confined to what appears on the face of the indictment. We cannot look beyond it, nor inquire as to proof, or what testimony might be offered. No authority is given the court to wander from the record before it, and it is upon the record, unaided by extrinsic matter, the questions raised must be decided. In allowing the demurrer, as the court feels bound to do, it is proper to say that the district attorney is no way responsible for this result. It is not his duty to make the returns of

election officers.

The People agt. Seeley.

When criminal offenses are charged to have been committed, he must take the papers as they are, and the responsibility for errors committed must be upon the parties who are by law required to prepare the returns. An order will be entered allowing the demurrer.

SUPREME COURT.

THE PEOPLE OF THE STATE OF NEW YORK, respondents, agt. EDWARD SEELEY, appellant.

Abduction - Penal Code, section 282, subdivision 1

crime of abduction under this section - Counts in indictment - Irregu larities of jury for which new trial will not be granted.

It is not necessary, to constitute the crime of abduction, as defined by subdivision 1 of section 282 of the Penal Code, that the accused should in any case use any force or practice any fraud or deception, and it is sufficient within the statute if the female is induced by his request, advice or persuasion to go from the place where the accused met and approached such female with the request and solicitation for her to. accompany him, or meet him at some other place indicated by the accused, with the intent and purpose there to accomplish the act of her defilement.

The offense may be accomplished without an actual manual capture of the female, nor is it necessary that she should be taken against her will, nor is it necessary that the girl should be taken from her parents or other custodian of her person.

The action of a jury in getting books of the law and consulting them while engaged in their deliberations in regard to a verdict, although irregular, is not sufficient to warrant a new trial.

Where there are three counts in an indictment the omission of the jury to render a verdict upon the second and third counts is not such an irregularity as should lead to a new trial, for the omission to find one way or the other is equivalent to an acquittal on those counts, and a judgment as to them is a bar to further prosecution.

Fifth Department, General Term, March, 1885.

Before SMITH, P. J., BARKER, HAIGHT and BRADLEY, JJ.

The People agt. Seeley.

THE appellant was convicted at the Monroe oyer and terminer for having abducted Lena Smith, a girl under the age of sixteen years, for the purpose of having sexual intercourse with her.

In the first count in the indictment it is charged that the defendant unlawfully and feloniously did take Lena Smith, a female under sixteen years of age, for the purpose of having sexual intercourse with her. This count is framed under subdivision 1 of section 282 of the Penal Code, as amended in 1884. The second and third counts charge offenses as defined in subdivisions 2 and 3 of the same section. The jury rendered a verdict of guilty, as charged in the first count, and in their verdict did not find either way on the other counts. Lena Smith, the prosecutrix, lived with her parents in a house near the grounds or yards of the city hospital in the city of Rochester. The accused had charge of the yards, and was acquainted with her and oocasionally met Lena on the street in front of her father's house. She testified in substance, that on the evening of the day mentioned in the indictment she was on the street in front of her home in company with another girl, Jennie Brooks, of the age of twelve years, with whom she was acquainted, when the defendant came to them and commenced a conversation, and proposed to her that she go with him into the hospital grounds, and she refused, and he then walked away. He soon returned to the same place and renewed the request, addressing himself to the prosecutrix, and asked her to go into the hospital yard and there have sexual intercourse with him, and offered to give her a dollar, which he said she could divide with her companion, Jennie Brooks.

The prosecutrix then consented, and the defendant directed the way and the gate through which she should pass into the grounds, and the girl Jennie Brooks accompanied her and he went by another way, passing through an alley, and they soon met in the grounds at the place designated by the defendant, a secluded part of the inclosure. While in the grounds the

The People agt. Seeley.

defendant had sexual intercourse with both girls. They then separated and the girls returned to the sidewalk, in front of Lena's home, where the accused soon joined them and he gave Lena fifty cents, which she shared with the girl Jennie. The prosecution called the latter as a witness and she fully corroborated the prosecutrix in her evidence, and the defendant's confessions were proved, which also tended to establish his guilt and confirm the story of the witnesses for the prosecution. One of the points made by the appellant's counsel on the trial was that the evidence did not constitute an offense within the sense and meaning of the statute.

William Henry Davis, for appellant.

W. H. Shaffer, assistant district attorney, for respondent.

BARKER, J. — The statute creating and defining the offense of which the defendant was convicted, is terse in expression as well as plain in its provisions. It declares that "a person who takes a female under the age of sixteen years for the purpose of prostitution or sexual intercourse, or without the consent of her father, mother, guardian or other person having legal charge of her person, for the purpose of marriage, is guilty of abduction and punishable by imprisonment for not more than five years, or by a fine of not more than one thousand dollars, or by both."

*

*

The only serious question presented is as to what acts on the part of the accused person will constitute an unlawful and criminal taking within the sense and meaning of the statute. We think it clear; in view of the nature of the wrong which the statute intended to punish, that it is not necessary to constitute the crime that the accused should in any case use any force or practice any fraud or deception, and that it is sufficient within the statute if the female is induced by his request, advice or persuasion to go from the place where the accused met and approached the prosecutrix with the request and solicitation for her to accompany him or meet him at some