Effect of consent of injured person.

(See Bell's Dict. Law of Scot.; Bouvier's Law Dict.; Jacob's Law Dict.) Thus, the Revised Statutes of Illinois (vol. 1, p. 366, § 54 and 55,) make false imprisonment to consist in a confinement or detention without legal authority, and confine kidnapping to the offense of abducting and sending to another country. The existing provisions of our own Revised Statutes draw no such distinction. The Commissioners have thought it best to preserve them as they now stand. In employing the term kidnapping as a caption to the chapter, they use it only as a convenient title for purposes of reference, and not as restrictive upon the definitions given of offenses prohibited.

Particular offenses, analogous to kidnapping, e. g., abduction of females, and child stealing, are the subject of some special provisions in other chapters of this Code.

In Hadden v. The People, 25 N. Y., 372, it has been lately held that procuring the intoxication of a sailor with the design of getting him on shipboard, without his consent, and taking him on board in that condition is kidnapping under the Revised Statutes; and that it is immaterial whether the offender did the acts, or any of them, in person or caused them to be done.

Where the intent and expectation, in such a case, is that the seaman will be carried out of this state, the offense is complete, although the ship be not in fact, destined to leave the state.

S273. Upon any trial for a violation of the preceding section the consent of the person kidnapped or confined thereto shall not be a defense, unless it appear satisfactorily to the jury that such person was above the age of twelve years, and that such consent was not extorted by threats or by duress.

See 2 Rev. Stat., 664, § 30. The above section is deemed by the Commissioners unnecessary; but as it is found in the existing law, and embodies a principle clearly correct, they have hesitated to omit it, lest a change in the law should seem to have been intended. They have inserted the words "that such person was above the age of twelve years;" believing that the consent of a child under that age, however freely given, should not operate as a defense.

Punishment of accessaries. Section 31, of 2 Rev. Stat., 665, providing that every person convicted as an accessary to any kidnapping or confinement hereinbefore prohibited is punishable by imprisonment in a state prison, not exceeding six years, or in a county jail, not exceeding one year, or by a fine, not exceeding five hundred dollars,

or by both such fine and imprisonment, is omitted. The
Commissioners have preferred to leave the punishment of
accessaries in kidnapping to the operation of the general
provision relative to accessaries, in section 30.

$274. Every person who, within this state or elsewhere, sells or in any manner transfers, for any term, the services or labor of any black, mulatto, or other person of color, who has been forcibly taken or inveigled, or kidnapped from this state, is punishable by imprisonment in a state prison not exceeding ten years.

See 2 Rev. Stat., 665, § 32. The words "within this state or elsewhere" are added. It was held in People v. Merrill, 2 Park. Cr., 590, that, under the Revised Statutes, no prosecution could be maintained where the sale was effected out of the state. The Commisioners are of opinion that in conformity to the views relative to the jurisdiction of the state over offenders who being out of the state, co-operate in the commission of an offense within it, which have been embodied in section 15 of this Code, one who, in another state, consummates the kidnapping of a person from this state, by selling him as a slave, may be held amenable to the penal justice of this state, if afterwards found within the jurisdiction of our courts.

Limit of punishment. The Revised Statutes contain an additional clause, allowing imprisonment in a county jail, or fine, to be imposed. The commissioners have omitted this clause; considering the offense deserving of imprisonment in a state prison, in all cases.

S 275. Every 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 Title V, of the Code of Criminal Procedure, 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.

S276. Every 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 provisions of Part VI, Title V, of the Code of Criminal Procedure, 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.

Embodies the provisions of Rep. Code Cr. Pro., §§ 910, 923. On comparing the provisions reported by the commissioners of practice and pleadings and which were founded on former provisions of the Revised Statutes, it will be observed that while a judge or other public officer who issues process for the removal of a fugitive, except as permitted by the Code of Criminal Procedure, is punishable by the penalties of misdemeanor the claimant of the fugitive who does any act towards his removal is guilty of felony, and may be punished by imprisonment extending to ten years. The commissioners do not consider this one of those extreme cases which justify the infliction of a penalty upon a judicial officer for an act in the nature of a judicial decision. They are of opinion that the above section should be omitted and the offenses specified, if flagrant enough to demand punishment should be left to the remedy by impeachment. If, however, a criminal penalty is to be inflicted upon the judge at all, the propriety of making so marked a distinction between the punishment to be inflicted upon the claimant and that prescribed for the judge is doubtful.

Shooting, and assault

with deadly

CHAPTER V.

ATTEMPTS TO KILL.

SECTION 277. Administering poison.

278. Shooting and assault and battery with deadly weapons.

279. Other assaults with intent to kill.

S 277. Every person who with intent to kill, adminand battery isters or causes or procures to be administered to weapons. another any poison which is actually taken by such other, but by which death is not caused, is punishable by imprisonment in a state prison not less than ten years.

Founded on 2 Rev. Stat., 666, §37.

tering

S 278. Every person who shoots or attempts to shoot Adminis at another, with any kind of fire arms, air gun or poison. other means whatever, with intent to kill any person, or who commits any assault and battery upon another by means of any deadly weapon, and by such other means or force as was likely to produce death, with intent to kill any other person, is punishable by imprisonment in a state prison not exceeding ten years.

This section embraces so much of 2 Rev. Stat., 665,
§36, as relates to attempts to kill; assaults, &c., in attempt
to commit other felonies are embraced by a subsequent
chapter.

Intent to kill a third person. The language of section 36
of 2 Rev. Stat., 655, above cited,-"any person who shall
be convicted
of any assault and battery
with the intent to kill,

upon another

*

*

*

&c., such other person,' -seems to require, in order to
warrant a conviction, that the accused should have intended
a felony on the very individual assaulted. A broader
rule is recommended by the commissioners in view of the
following adjudications. The person was indicted for
wounding Y, with intent to murder him. It appeared that
he shot at Y supposing him to be M, and intending to
murder M; held he was properly convicted of wounding
Y, with intent to murder him. He intended to murder
the man at whom he shot. Reg. v Smith, 1 Jur., N. S.,
1116; 25 Law J. (M. C.), 29.

On a trial for assault and battery with intent to kill, it
appeared that the prisoner being pursued by two officers,
attempting to arrest him, fired a pistol in the direction of
both, and so near as to endanger both. He intended to
harm at least one; but was regardless which he might
harm, his object being to prevent an arrest. Held, that
he might be convicted on an indictment charging him
with an assault on two. Commonwealth ". McLaughlin,
12 Cush., 615.

The defendant fired into a crowd with intent to kill some one, and A was wounded. Held, that this was enough to establish an assault and battery upon A, with intent to kill. Walker v. State, 8 Ind., 290.

But an intent to kill some particular person must be shown. Reg. v. Lallement, 6 Cox Cr. Cas., 204.

And where a woman jumped out of a window for the purpose of avoiding violence threatened by her husband, and sustained a dangerous bodily injury, it was held that the husband could not be convicted of an attempt to murder, unless he intended, by his conduct, to make her jump from the window. Reg. v. Donovan, 4 Cox Cr. Cas., 400.

Other assaults

to kill.

$279. Every person who is guilty of an assault with intent with intent to kill any person, the punishment for which is not prescribed by the foregoing section, is punishable by imprisonment in a state prison for a term not exceeding five years, or in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.

Embraces so much of 2 Rev. Stat., 666, § 39, as relates to assaults with intent to kill.

Robbery defined.

281. How force or fear must be employed.

282. Degree of force immaterial.

283. What fear may be an element in robbery.
284. Value of property taken, immaterial.

285. Taking of property secretly, not robbery.
286. Two degrees of robbery.

287. Punishment of robbery in first degree.

288. Punishment of robbery in second degree.

289. Punishment of robbery committed by two or more persons.

S 280. Robbery is a wrongful taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.

This definition embodies substantially the elements suggested by 2 Rev. Stat., 677, §§ 55, 56; the word 'wrongfully" being substituted for "feloniously." Three elements are necessary to constitute the offense of robbery, as it is generally understood. 1. A taking of property from the person or presence of its possessor. 2. A wrongful intent to appropriate it. 3. The use of violence or fear to accomplish the purpose. The first and second of these elements, the third being wanting, constitute simple larceny. The first and third, without the second, amount at most to a trespass. The second and third, without the first, constitute an attempt to rob. These elements are kept in view in the provisions upon robbery ; and offenses not presenting all are excluded from this chapter, and covered by other provisions of the Code.