act as second, or surgeon, to one accepting, or knowingly delivers such acceptance, or advises, encourages, or promotes it, though no duel ensues, shall be punished by imprisonment less than one year, and by fine not exceeding one thousand dollars; and be incapable, as in the preceding section, for five years after conviction.14

13. If any resident of this State leaves it for the purpose of eluding the operation of the two preceding sections, with intent to do and does acts out of the State which would be a violation of their provisions if done within the State, he shall be subject to the same punishment as if the offense had been committed in the State; and he may be indicted and tried in the county where he resides.15

14. If a person posts another, or uses, in writing or in print, any reproachful or contemptuous language concerning him for not fighting a duel, or for not sending or accepting a challenge, he shall be punished by imprisonment less than one year, and by fine not exceeding one hundred dollars.16

15. If a person, with malicious intent to maim or disfigure, cuts or maims the tongue, puts out or destroys an eye, cuts or tears off an ear, cuts, slits, or mutilates the nose or lip, cuts off or disables a limb or other member of another person, he shall be punished by imprisonment not less than one, nor more than twenty years.17

16. Whoever, by force and violence, or by putting in fear, feloniously steals and takes from the person of another, property that is the subject of larceny, shall be deemed guilty of robbery, and if, at the time, he is armed with a dangerous weapon, with intent, if resisted, to kill or maim such person; or if, being so armed, he wounds or strikes him; or if he has any confederate present, so armed, to aid or abet him, he shall be punished by imprisonment for life; otherwise for any term of years or for life.18

17. Whoever ravishes, and carnally knows, any female of ten or more years of age by force and against her will, or unlawfully and carnally knows and abuses a female

14 R. S. o. 118, § 12.-15 R. S. c. 118, § 13.-16 R. S. c. 118, § 14.-—17 R. S. c. 118, § 15.-18 R. S. c. 118, § 16.

child under ten years of age shall be punished by imprisonment for life or a term of years.19

(f) The acts necessary to constitute rape must be done "by force;" and these words, or some equally significant, in addition to the other language used in the statute, cannot be dispensed with in an indictment founded thereon.2 The word "violently" is not sufficient.20

18. Whoever takes a woman unlawfully and against her will, and by force, menace, or duress, compels her to marry him, or any other person, or to be defiled, shall be punished by imprisonment for life or any term of years. And whoever so takes a woman, with intent by such means to compel her to do so, shall be punished by imprisonment not less than one, nor more than ten years.21

19. Whoever unlawfully confines or imprisons another, or forcibly transports or carries him out of the State, or from place to place within it, or so seizes, conveys, inveigles, or kidnaps any person with intent to cause him to be so dealt with; or sells as a slave, or transfers, for any term of time, the service of any person of color, who has been so seized, inveigled, or kidnapped, shall be punished by imprisonment not more than five years, or by a fine not exceeding one thousand dollars: These offenses may be indicted and tried in the county where such person was carried or brought, or in the county where the offense was committed; and on trial the consent of such person shall not be a defense, unless it appears that it was not obtained by fraud, threats, or duress.22

20. If a father or mother of a child under the age of six years, or a person to whom such child is confided, exposes it in any place, with intent wholly to abandon it, he shall be punished by imprisonment not more than five years, or by fine not exceeding five hundred dollars.28

21. If the master of a vessel carries out of the State an apprentice, indented servant, or person under twenty-one years of age, without the consent of his parent, master, or guardian, he shall be punished by a fine not exceeding two hundred dollars; and be liable in an action on the case, to such parent, master, or guardian, for all damages thereby sustained.24

19 R. S. c. 118, § 17, and Public Laws of 1872, c. 12.-20 State v. Blake, 39 Me. 322.-21 R. S. c. 118, § 18.-22 R. S. c. 118, § 19.-23 R. S. c. 118, § 20.-24 R. S. c. 118, § 21.

1

(g) No vindictive damages are contemplated by this section; but the measure of damages is compensation for the pecuniary injury or loss resulting from such transportation. And it is for the direct consequences of his own act, and not for the act of God, that such master is responsible. Thus, if the minor dies at the termination of the outward voyage, no damages can be recovered of the master, by the father for the loss of his son's services, after his death.25

22. Whoever, in this State, enlists or causes to be enlisted into the army of the United States, a person, knowing him to be a minor, without the written consent of his parent, master, or guardian, and he is removed out of the State within six months after his enlistment; or persuades him to leave the State with intent thus to enlist him, shall be punished by imprisonment less than one year, or by fine not exceeding five hundred dollars.26

23. Whoever, verbally or by written or printed communication, maliciously threatens to accuse another of a crime or offense, or to do any injury to his person or property, with intent thereby to extort money or procure any advantage from him, or to compel him to do any act against his will, shall be punished by imprisonment not exceeding two years, or by fine not exceeding five hundred. dollars.27

(h) The offense described in § 23 does not consist in the effect, which the threats may have had upon the person, or in the fact, that property was thereby obtained; but in maliciously threatening to accuse him of an offense, or to injure his person or property, with intent to extort money, or pecuniary advantage, or with intent to compel him to do an act against his will.28

(2) A person whose property has been stolen cannot claim the right to punish the thief himself without process of law, and to make him compensate him for the loss of his property by maliciously threatening to accuse him of the offense, or to injure his person or property, with intent to extort property from him.28

(j) A threat made by one whose goods had been stolen, that he would prosecute the supposed thief for the offense, if there were grounds to suspect him to be guilty, could not be considered as made maliciously and with intent to extort property, unless there were other proofs of malice and intended extortion.28

24. Whoever assaults a female of ten years of age or more, with intent to commit a rape, shall be punished by

25 Nickerson v. Harriman, 38 Me. 277.-26 R. S. c. 118, § 22.-27 R. S. c. 118, § 23.-28 State v. Bruce, 24 Me. 71.

imprisonment not exceeding ten years, or by fine not exceeding five hundred dollars. If such assault is made on a female under ten years, such imprisonment shall not be less than one, nor more than twenty years.29

25. Whoever assaults another with intent to murder, kill, maim, rob, steal, or to commit arson or burglary, if armed with a dangerous weapon, shall be punished by imprisonment not less than one, nor more than twenty years; when not so armed, by imprisonment not more than ten years, or by fine not exceeding one thousand dollars."

80

(k) By § 25, an assault with intent to murder, and an assault with intent to kill, are recognized as distinct offenses, unknown to the common law."1

(1) An assault with intent to murder necessarily involves an assault with intent to kill; and where a person is accused of the greater, the jury are authorized to find him guilty of the less offense.31

(m) To sustain a conviction of one accused of a felonious assault with intent of his malice aforethought to kill and murder, the evidence must be such that if death had ensued, he would have been guilty of murder.32 The intent charged must be specifically proved.

26. Whoever commits an assault not before described, with intent to commit a felony, shall be punished by imprisonment not more than five years, or by fine not exceeding five hundred dollars.33

27. Whoever, without an assault, unlawfully attempts by any means or in any form to murder or kill a human being, shall be punished by imprisonment not less than one, nor more than twenty years.

34

28. Whoever unlawfully attempts to strike, hit, touch, or do any violence to another however small, in a wanton, willful, angry, or insulting manner, having an intention and existing ability to do some violence to such person, shall be deemed guilty of an assault; and if such attempt is carried into effect, he shall be deemed guilty of an assault and battery, and for either, shall be punished by imprisonment not exceeding five years, or by fine not exceeding one thousand dollars, when no other punishment is prescribed.35

29 R. S. c. 118, § 24.-30 R. S. c. 118, § 25.-31 State v. Waters, 39 Me. 54.32 State v. Neal, 37 Me. 468.-33 R. S. c. 118, § 26.4 R. S. c. 118, § 27.5 R. S. c. 118, § 28, and Public Laws of 1872, c. 82.

(n) To justify an assault under the plea of son assault demesne, the defendant must show that the plaintiff committed the first assault, and that what was thereupon done by him was in the necessary defense of his own person; and he must also show that the force used by him was appropriate in kind, and suitable in degree.36

(0) An indictment alleged that the accused, on a day and at a place named, "with force and arms, in and upon the body of” a person named, "the said" person "being then and there a deputy-sheriff within and for the county of Kennebec, legally authorized and duly qualified to discharge the duties of said office, and being then and there in the due and lawful execution of the same, did make an assault, and him the said " person "did then and there beat, wound, and ill-treat, and, in the due and lawful execution of his said office, did then and there unlawfully, knowingly, and designedly obstruct, hinder, and oppose. contrary to the form of the statute," &c. It was held on demurrer, (1) That the indictment charged an assault and battery; (2) That the averments as to the official position of the person assaulted, and to the effect of the assault in hindering him from the performance of his official duties, are to be taken only as allegations in aggravation of the assault; (3) That it is not bad for duplicity; and (4) That judgment could be properly rendered upon the indictment, whether the matter alleged in aggravation were supported by proof or not.37

29. Any slave, voluntarily brought into this State by his master or by his knowledge or consent, is thereby free; and if restrained of his liberty, he may be discharged on writ of habeas corpus; and if any person attempts to restrain him of his liberty, or to exercise the authority of master over him, he shall be punished by a fine not exceeding one thousand dollars, or by imprisonment less than one year. 38

(p) COMPLAINTS FOR OFFENSES AGAINST LIFE OR PERSON.

See p. 356 for commencement and conclusion of complaints. Any of the following may be inserted instead of the clause in parentheses in the form referred to.

1. Murder.

in and upon the body of one E. F., feloniously, willfully, and of his malice aforethought, did make an assault, and him the said J. C., then and there feloniously, willfully, and of his malice aforethought, did kill and murder.

36 Rogers v. Waite, 44 Me. 275.-87 State v. Dearborn, 54 Me. 442.-38 R. S. c. 118, § 29.