court, if he be a negro, either be confined in the penitentiary not less than one, nor more than five years, or be confined in jail not exceeding twelve months, and fined not exceeding five hundred dollars." (1 R. C. p. 582, ch. 156, § 1, 2. Acts 1847-8, p. 96, § 10. 1 Vict. ch. 85, § 3, 4, 5.)

§ 10. If any free person, in the commission of, or attempt to commit, a felony, unlawfully shoot, stab, cut or wound another person, he shall, at the discretion of the jury, if the accused be white, or of the court, if he be a negro, either be confined in the penitentiary not less than one, nor more than

7 The 3d, 4th and 5th secfions of the statute of 1 Vict. ch. 85. cited ante, p. 938-9, (of the revisor's reports,) it will be perceived, extend to cases which are not embraced by this or any of the subsequent sections. Boiling water thrown on a party has been held, in England, to be destructive matter within the 5th section of 1 Vict. ch. 85; Rex v. Crawford, 1 Den. (C. C.) 100, and 2 Car. & K. 129. It would be much more difficult to make out an offence from such an act under the section to which this note is appended, which requires that there should be the intent to maim, disfigure, disable or kill than under the statute of 1 Vict. ch. 85, which is satisfied if there was the attempt to do some other grievous bodily harm. Rep. Rev. C. V. p. 942, note.

A negro slave is a person on whom a free person may commit the offence of malicious or unlawful shooting, stabbing, &c., under this act. See Com. v. Chapple, 1 Va. Cas. 184; Com. v. Carver, 5 Rand, 660.

If an indictment charge that one feloniously did strike, cut and stab an other, with intent to kill, &c., although the words strike and cut are not in the statute, (1. R. C. ch. 156, § 1,) yet the indictment ought not to be quashed "because of the commixture of felony and misdemeanor" contained therein. Those words may be rejected as surplusage. Derieux v. Com., 2 Va. Cas. 379.

An indictment charging that prisoner "at the county and within the jurisdiction of the court, feloniously and maliciously did stab one P. T. with intention to maim, &c. and kill him," will not be quashed, upon objection that it does not allege any assault, striking or wounding, nor that P. T. was within the county or jurisdiction, nor that the intent was felonious or malicious. Com. v. Woodson, 9 Leigh 669.

An indictment charging the intention to maim, disfigure, disable and kill, is good and sufficient; it being proper to lay the intention in the conjunctive, although the statute is in the disjunctive. And the finding by the jury of a substantive offence, to wit, of unlawful shooting, with intention to maim, disfigure and disable, is sufficient, without proving all of the intentions laid. Angel v. Com., 2 Va. Cas. 231.

five years, or be confined in jail not exceeding one year, and fined not exceeding five hundred dollars. (Acts 1747-8, p. 97, § 18.)

§ 11. If a free person unlawfully shoot at another person, in any street in a town, or in any place of public resort, whether in a town or elsewhere, he shall be confined in jail not less than six months, nor more than three years, and be fined not less than one hundred, nor exceeding one thousand dollars. (Acts 1846-7, p. 67, ch. 79.)

§ 12. If any person commit robbery,† from the person of another, by partial strangulation or suffocation, or by striking or beating, or by other violence to the person, or by the threat or presenting of fire arms, he shall be punished with death, or at the discretion of the jury, by confinement in the penitentiary for a period not less than eight nor more than eighteen years. If any person shall commit a robbery in any other mode, or by any other means, he shall be confined in the penitentiary not less than five nor more than ten years. (1 R. C. p. 617, § 5. Acts 1819-20, p. 18, ch. 20; 1847-8, p. 96, § 11, 12; 1866, p. 90, § 1; 1 Vict. ch. 87, § 2, 3, 5, 6, 7, 12.)

§ 13. If any free person threaten injury to the character, person or property of another person, or to accuse him of any offence, and thereby extort money or pecuniary benefit, he shall be confined in the penitentiary not less than one, nor more than five years. (Acts 1847-8, p. 96, § 13. 1 Vict. ch. 87, § 4; 10 & 11 Vict. ch. 66, § 1, 2.)

§14. If any free person seize, take or secrete a child from the person having lawful charge of such child, with intent to extort money or pecuniary benefit, he shall be confined in

† An indictment for robbery charged that the prisoners "did make an assault" upon G., and one gold watch, &c., from the person and against the will of G., &c., "feloniously and violently did steal," &c. The jury acquitted the prisoners of the felony charged, but found them guilty of "assault and battery." On motion in arrest of judgment, held the finding valid under ch. 208, § 27 of the Code; Hardy & Curry v. Com., 17 Gratt. 592.

the penitentiary not less than one, nor more than five years. (Acts 1847-8, p. 96, § 14. 9 Geo. IV. ch. 31, § 21.)

Rape, abduction and kidnapping.

§ 15. If any person carnally know a female of the age of twelve years or more, against her will, by force, or carnally know a female child under that age, he shall be, at the discretion of the jury, punished by death, or confined in the penitentiary for not less than ten nor more than twenty years. (1 R. C. p. 585, ch. 158, § 1, 3. Acts 1847-8, p. 97,

8 The statute of 9 Geo. IV. ch. 31, § 17, after reciting that upon the trials for the crimes of buggery and of rape, and of carnally abusing girls under certain ages, offenders frequently escaped by reason of the difficulty of the proof required of the completion of those crimes, enacts that it shall not be necessary, in any of those cases, to prove the actual emission of seed in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete, upon proof of penetration only. For the decisions under this state, see R. v. Russell, 2 M. & M. 122; Rex v. Jennings, 4 Car. & Payne 249; Rex v. Cox, 5 Car. & Payne 297, 24 Eng. Com. Law Rep. 328; Rex v. Gammon, 5 Car. & Payne 321, 24 Eng. Com. Law Rep. 339; R. v. M'Rae, 8 Car. & Payne 641, 34 Eng. Com. Law Rep. 562; R. v. Allen, 9 Car. & Payne 31, 36 Eng. Com. Law Rep. 24. The abstract of the last case is in these terms: "In a case of rape, since the passing of the statute 9 Geo. IV. ch. 31, § 18, the only question for the jury is, whether the private parts of the man did or did not enter into the person of the woman; and the reason for the limitation to that single enquiry seems to be, that it was thought that the law was holding itself up to contempt, by having the subtle and critical subjects of emission, &c., discussed before judges and jurors. Therefore, though it appear from the evidence beyond all possibility of doubt, that the party was disturbed immediately after penetration and before the completion of his purpose, yet he must be found guilty of having committed the complete offence of rape." See also R. v. Jordan, &c,, 9 Car. & Payne 118, 38 Eng. Com. Law Rep. 63; R. v. Hughes, 9 Car. & Payne 752, 38 Eng. Com, Law Rep. 320; R. v. Lines, 1 Car. & Kirw. 393, 47 Eng. Com, Law Rep. 393; R. v. Stanton, 1 Car. & Kirw. 415, 47 Eng. Com. Law Rep. 415, in which last case Coleridge, J. says, "the smallest penetration is sufficient to constitute the complete offence of rape.” We recommend that at the end of the section to which this note is appended, there be added the following words, taken from art. 26, p. 43, of the second report, and p. 169 of the fourth report of the English commissioners: Any, the least degree of penetration, although there be no emission of seed, shall be sufficient to constitute carnal knowledge in relation to the crimes mentioned in" this section. Rep. Rev. C. V. p. 945, note. The

§ 15. 9 Geo. IV. ch. 31, § 17; 1866, p. 82, ch. 14, § 1.) § 16. If any person take away or detain, against her will, a female, with intent to marry or defile her, or cause her to be married or defiled by another person or take from any person, having lawful charge of her, a female child

words recommended as an addition to the section, it will be seen, were not added.

The doubts that existed in England have been put to rest by the 9 Geo. IV. ch. 31, making the least penetration enough; and in this country the proof of emission seems never to have been required. In several instances, in fact, it has been held, that as the essence of the crime is the violence done to the person and feelings of the woman, which is completed by penetration without emission, it will be sufficient to prove penetration. Whart. Am. Crim. Law, 4th edi. § 1137. See State v. Leblanc, 3 Brevard 339; Penn'a v. Sullivan, Add. 143; Stroud v. Com., 11 Serg. & R. 177.

In this State, we have no statute upon the subject, nor has any case of rape been reported in which it has been necessary to decide the question; but in case of sodomy, in which the same question arises and is governed by the same principles, so that the decision of it in respect to the one crime is considered equally applicable to the other, it was determined that penetration alone completes that crime. (Com. v. Thomas, 1 Va. Cas. 307.) Upon the authority of this decision, as well as of reason, it may be concluded that here also carnal knowledge is accomplished by the commencement of a sexual connexion: and proof of the circumstance, which usually terminates it, is not required. Davis' Crim. Law 128.

It is agreed that, in order to constitute carnal knowledge, there must be penetration by the actual introduction of the male organ; but the least degree of penetration is sufficient, though it may not be attended with the deprivation of the marks of virginity. Ibid 128-9; Whart. Am. Crim. Law, 4th edi. § 1138-9; Rex v. Russen, 1 East P. C. 438; Rex v. Allen, 9 C. & P. 31; Rex v. Jordan, Id. 118.

The common law principle is, that a child under ten years of age is incapable of connecting; (4 Black. Com. 212; 2 Va. Cas. 240;) and under that law it was a question of doubt whether a rape could be ccmmitted upon a female child under that age. The statute of 18 Eliz. ch. 7, § 4, was, therefore, passed for "a plain declaration of the law," in this regard, which was copied into our Code, (1 R. C. ch. 258, § 3,) except as to the punishment prescribed. The statute enacted, that "If any person shall unlawfully and carnally know and abuse any woman child under the age of ten years, every such unlawful and carnal knowledge shall be felony, and the offender, if a free person, shall undergo confinement in the penitentiary, for a period not less than two, nor more than ten years." This offence, as has been remarked, is not properly speaking a rape, which implies a carnal knowledge against the will of the party; but a felony created by this statute, under which the

under twelve years of age, for the purpose of prostitution

consent or non-consent of the child is immaterial. Davis's Crim, Law, 132 1 East P. C. 346; Com. v. Bennet, 2 Va. Cas. 235. Under the above section,

(§ 15,) to which this note is subjoined, carnal knowledge of a female child under 12 years of age, though with her consent, and therefore, technically speaking, not a rape, is nevertheless in violation of the statute and subjects the offender to its penalty. The statute changes the common law principle and, with reference to this subject, fixes on twelve years as the age of volition or consent, prior to which time the female child is not looked upon as capable of consenting.

It is sufficient that the offence is committed without the consent of the

woman, and that the force may reasonably be supposed adequate to overcome her resistance, taking into consideration the relative strength of the parties and other circumstances of the case. Force, as an ingredient of the crime, is required in order to shew that the act was perpetrated against the consent of the woman. But where in consequence of her situation, consent cannot be presumed from want of resistance; as if she were violated during sleep, or whilst in a state of stupefaction caused by inebriates or narcotics, or during a fit; no other force is requisite than that necessarily incident to the accomplishment of the criminal purpose. Davis' Crim. Law 129.

If the court for rape under a particular section of the statute, (1 Rev. Code ch. 258, § 3,) charges more than is requisite, (as that the prisoner "forcibly ravished," and that it was done "against the will, and without the consent" of the person upon whom it was committed, that part may be rejected as surplusage. Com v. Bennet, 1 Va. Cas. 235.

At common law, a child under fourteen years of age is presumed incapable of committing a rape; (1 Hale 631; Rex. v. Eldershaw, 3 C. & P. 11; Rex v. Groombridge, 7 C. & P. 582,) for though in other felonies malitia supplet aetatem, yet, as to this particular species of felony, the law supposes an imbecility of body as well as of mind. 4 Black. Com. 212. The contrary, however, is the better approved opinion. Whart. Am. Crim. Law 4th edi. § 1134; Rex v. Phillips, 8C. & P. 736; Rex v. Jordan, 9 C. & P. 118; Lewis C. L. 558. But whatever may be the limits of his capacity as a direct agent, it is clear that when concerned with others, he may be convicted as principal in the second degree. Whart. Am. Crim. Law, § 1134; Davis' Crim. Law 130; Rex v. Phillips. 8 C. &. P. 736; 1 Russell & M. 675.

Though in a prosecution for a rape it is competent to prove the fact of a recent complaint by the female, for the purpose of sustaining her credit, it is not competent to prove any particulars of the description of the person committing the offence which may have been given by her. Brogg's case, 10 Gratt. 722.

A fortiori: If the female, when examined as a witness, declines to give a description of the person committing the offence, it is not competent to prove the description given by her when not upon oath. Ibid.

• The age in the act of 1 R. C. p. 402, § 25, is sixteen years; and in the