or by both such fine and imprisonment, is omitted. The $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. $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. S 276. 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 and battery with deadly weapons. 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. S277. Every person who with intent to kill, administers or causes or procures to be administered to 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 $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, Intent to kill a third person. The language of section 36 * * * &c., such other person," -seems to require, in order to On a trial for assault and battery with intent to kill, it 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. CHAPTER VI. ROBBERY. SECTION 280. 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. 287. Punishment of robbery in first degree. 288. Punishment of robbery in second degree. 289. Punishment of robbery committed by two or more persons. S280. 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. For the distinctions between robbery, larceny, extortion, embezzlement, and those cases of taking of personal property which amount only to trespass, see notes upon the subjects of larceny and extortion. S281. To constitute robbery the force or fear must be employed either to obtain or retain possession of the property or to prevent or overcome resistance. to the taking. If employed merely as a means of escape it does not constitute robbery. This provision conforms to the existing law, as established by the Revised Statutes. It has been held, indeed, that violence employed to get possession of the property does not constitute robbery; to have this effect the force must be employed to prevent or overpower resistance. State v. John., 5 Jones N. C. Law Rep., 163; Rex v. Gnosil, 1 Carr. & P., 304; Rex v. Baker, Leach., 290; R. v. Homer, Leach, 291, n. The Commissioners believe, however, it will be found the safer rule to punish the taking as robbery where it is accomplished by force, against an actual dissent of the owner's will. This will exclude secret stealing from the person; such as picking the pocket, and other cases in which, though an indefinitely small force is used in removing the property, it is done without the owner's knowledge. $282. When force is employed in either of the ways specified in the last section, the degree of force employed is immaterial. In an English case, it appeared that the prisoner struck the prosecutor's hand so as to cause money in it to fall to the ground, and then picked up the money himself, using threatening violence to prevent the prosecutor from doing so. Held, robbery if the taking by the prisoner was committed while the owner of the money still remained present. Rex v. Francis, 2 Strange, 1015. In a case in Rhode Island it appeared that the prisoner put one of his hands through the arm of the prosecutor, and with the other seized the latter's watch; saying, "I will have your watch;" and, breaking the watch guard, fled with the watch. Held, robbery, on the ground, the taking was by force. The expressed determination made the case one of open violence, as distinguished from a secret taking or mere snatching by surprise. State v. McCune, 5 R. I., 60. How force be emp or fear must loyed. Degree of terial." force imma S 283. The fear which constitutes robbery may be What fear either: may be an element in robbery. |