commits any assault upon the person of another with any sharp or dangerous weapon, or who without such cause shoots or attempts to shoot at another with any kind of fire-arms, or air-gun or other means whatever, with intent to injure any person, although without intent to kill such person or to commit any felony, is punishable by imprisonment in a state prison not exceeding five years, or by imprisonment in a county jail not exceeding one year. See Laws of 1854, ch. 74, § 1. CHAPTER X. LIBEL. SECTION 309. Libel defined. 310. Libel a misdemeanor. 311. Malice presumed. 312. Truth may be given in evidence. 313. Publication defined. 314. Liability of editors and others. 315. Publishing a true report of public official proceedings privileged. 316. Extent of the privilege. 317. Other privileged communications. 318. Threatening to publish a libel. S309. Any malicious injury to good name, other Libel dethan by words orally spoken, is a libel. Corresponds with the definition given in Dr. Civ. Code, § 22. fined. demeanor. S 310. Every person who willfully, and with a Libel a mismalicious intent to injure another, publishes any libel is guilty of a misdemeanor. sumed. S311. An injurious publication is presumed to Malice prehave been malicious if no justifiable motive for making it is shown. S312. In all criminal prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it shall appear to the jury, that the matter charged as libelous is true and was published with Truth may evidence. be given in Publication defined. Liability of editors and others. Publishing a true re good motives and for justifiable ends, the party shall be acquitted. Const. of 1846, art. 1, § 8. S313. To sustain a charge of publishing a libel it is not needful that the words complained of should have been read by any person. It is enough that the accused knowingly parted with the immediate custody of the libel under circumstances which exposed it to be read by any other person than himself. Giles v. The State, 6 Ga., 276. S314. Each author, editor, and proprietor, of any book, newspaper or serial publication, and each member of any partnership or incorporated association, by which any book, newspaper, or serial publication is issued, is chargeable with the publication of any words contained in any part of said book, or number of such newspaper or serial. Compare Rex v. Gutch, 1 Moo. & M., 433; Commonwealth v. Kneeland, Thach. Cr. C., 846. S 315. No reporter, editor or proprietor of any port of pub. newspaper, is liable to any prosecution for a fair and lic official proceedings privileged. true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate in the course of the same, except upon proof of malice, in making such report, which shall in no case be implied from the mere fact of publication. Laws of 1854, ch. 130, § 1. In Sanford v. Bennett (24 N. Y., 20), the question was whether a speech made by a convict at the place of execution was a speech made in the course of a judicial or public official proceeding, within the meaning of the statute, so that one publishing it was protected by the statute from a civil action for injurious words contained in it, concerning other persons. The court decided the question in the negative. They held that the statute applies only to judicial and legislative proceedings, and to transactions resembling them, such as the transactions of administrative boards, in which the subjects dealt with are liable to be considered, deliberated upon, discussed and determined, and not to an executive act to be performed by a single person and admitting of no deliberation, and it protects only the publication of speeches which form properly a part of the proceeding; not those the privi S 316. Libelous remarks or comments connected Extent of with matter privileged by the last section receive no lege." privilege by reason of their being so connected. See Laws of 1854, ch. 130, § 2. Other privi leged com tions. $317. A communication made to a person interested in the communication by one who was also municainterested or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is called a privileged communication. Dr. Civ. Code, § 25. S318. Every person who threatens to another to publish a libel concerning him or any parent, husband, wife or child of such person or member of his family, is guilty of a misdemeanor. The Commissioners have intentionally confined this section to the case of threats uttered directly to the person about to be libeled. The ground upon which the criminal remedy for libel is allowed, is the tendency of a libel to provoke a breach of the peace. When a threat to publish one is addressed to the person to be libeled, the tendency of the threat is nearly as dangerous as the actual publication would be. But a threat to publish a libel uttered to third persons, and only reaching the injured party through indirect repetition, is after all no more calculated to create disturbance of the peace than other forms of slander; and should not be distinguished from slander in the remedy allowed. Threaten ing to pub lish a libel. TITLE X. OF CRIMES AGAINST THE PERSON AND AGAINST CHAPTER I. Rape, abduction, carnal abuse of children, and seduction. III. Abortions and concealing death of infant. IV. Child stealing. V. Bigamy, incest and the crime against nature. VI. Violating sepulture and the remains of the dead. VII. Indecent exposures, obscene exhibitions, books and prints, and disorderly houses. VIII. Lotteries. IX. Gaming. X. Pawnbrokers. Rape defined. CHAPTER I. RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION. SECTION 319. Rape defined. 320. When physical ability must be proved. 321. Penetration sufficient. 322. Rape in the first degree defined. 323. Rape in the second degree defined. 324. Punishment of rape in the first degree. 325. Punishment of rape in the second degree. 326. Compelling woman to marry. 327. Taking a woman with intent to compel her to marry or to be defiled. 328. Seduction for purposes of prostitution. 329. Abduction. 330. Seduction under promise of marriage. S319. Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances: 1. Where the female is under the age of ten years; 2. Where she is incapable, through lunacy or any other unsoundness of mind, whether temporary or permanent, of giving legal consent; 3. Where she resists, but her resistance is overcome by force or violence; 4. Where she is prevented from resisting by threats of immediate and great bodily harm, accompanied by apparent power of execution; 5. Where she is prevented from resisting by any intoxicating, narcotic or anesthetic agent administered by or with the privity of the accused; 6. Where she is at the time unconscious of the nature of the act, and this is known to the accused; 7. Where she submits under a belief that the person committing the act is her husband; and this belief is induced by any artifice, pretense or concealment, practised by the accused, with intent to induce such belief. This section is an extension of the generally received definition of rape. East defines this offense to be "the unlawful carnal knowledge of a woman by force and against her will." (1 East. P. C., 434.) Blackstone defines it in the same language, omitting the word “unlawful." (4 Blackst. Comm., 210.) And this is believed to be substantially the definition given by the leading writers on criminal law, except that some of the later decisions indicate a disposition to substitute the idea "without her consent" for "against her will." (See Reg. v. Camplin, 1 Cox Cr. Cas., 220; 1 Den. C. C., 89; 1 Carr. & K., 746; Reg. v. Sweenie, 8 Cox Cr. Cas., 223; 3 Irvine, 159.) Our own Revised Statutes, in lieu of any formal definition of the crime, provide that: "Every person who shall be convicted of rape, either: 1. By carnally and unlawfully knowing any female child under the age of ten years; or, 2. By forcibly ravishing any woman of the age of ten years or upwards; shall be punished," &c. (2 Rev. Stat., 663, § 22.) The Commissioners have designed to present a definition which should expressly include the various instances which have been adjudged to constitute the offense, with some others which have been held not to fall within the limited definition of the common law authorities, but to which the same penalties ought to be extended. Subd. 1. This provision embodies the well settled rule of the existing law; that a girl under ten years of |