which produces the death of the latter, is guilty of manslaughter in the second degree. See § 357, post. § 201. Liability of persons making or keeping gunpowder contrary to law. A person who makes or keeps gunpowder or any other explosive substance within a city or village, in any quantity or manner prohibited by law, or by ordinance of the city or village, if any explosion thereof occurs, whereby the death of a human being is occasioned, is guilty of manslaughter in the second degree. See $$ 389, 636, 645, post. 202. Punishment of manslaughter in second degree.-Manslaughter in the second degree is punishable by imprisonment for a term not exceeding fifteen years, or by a fine of not more than one thousand dollars, or by both. 203. Homicide, when excusable.-Homicide is excusable when committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act, by lawful means, with ordinary caution, and without any unlawful intent. Correction. State v. Harris, 63 N. C. 1. See § 223, subd. 4, post. 204. Justifiable homicide.- Homicide is justifiable when committed by a public officer, or a person acting by his command and in his aid and assistance, either 1. In obedience to the judgment of a competent court; or 2. Necessarily, in overcoming actual resistance to the execution of the legal process, mandate or order of a court or officer, or in the discharge of a legal duty; or 3. Necessarily, in retaking a prisoner who has committed, or has been arrested for, or convicted of a felony, and who has escaped or has been rescued, or in arresting a person who has committed a felony and is fleeing from justice; or in attempting by lawful ways and means to apprehend a person for a felony actually committed, or in lawfully suppressing a riot, or in lawfully preserving the peace. Of alien enemy, unarmed. State v. Gut. 13 Minn. 341. Subd. 2. Conraddy v. People, 5 Park. 234. Subd. 3. Killing prisoner convicted of misdemeanor in escaping, murder. Reneau v. Tenn., 12 Alb. L. J 57. See People v. Carlton, 115 N. Y. 623; 26 N. Y. State Rep'r, 436; People v. MeCarthy, 47 Hun, 491; aff'd, 110 N. Y. 309. 205. Justifiable homicide.- Homicide is also justifiable when committed, either 1. In the lawful defense of the slayer, or of his or her husband, wife, parent, child, brother, sister, master or servant, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony, or to do some great personal injury to the slayer, or to any such person, and there is imminent danger of such design being accomplished; or 2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling or other place of abode in which he is. See 26, supra; 1223, post. Justification. Apprehension of bodily harm. State v. Cheatwood, 2 Hill (S. C.), 459; Com. v. Webster, 5 Cush. 295; State v. Johnson, 1 Ired. 354; Felix v. State, 18 Ala. 720; State v. Baker, 1 Jones, 267; Evers v. People, 3 Hun, 716; S. C., 63 N. Y. 625. Mere apprehension of danger, without overt act, will not justify. Real v. People, 42 N. Y. 270; S. C., 55 Barb. 551; 8 Abb. Pr. (N. S.) 314. Nor will previous ill treatment. Id. Subd. 1. Stanton's case, 2C H. Rec. 164. Subd. 2. If circumstances furnish reasonable ground of apprehension, act is justifiable. Shorter v. People, 2 N. Y. 163: Patterson v. People, 46 Barb. 625; People v. Lamb, 54 id. 342; People v. Austin, 1 Park. 154; People v. Cole, 4 id. 35: Pfomer v. People, id. 558; Uhl v. People, 5 id. 410. Attack in self-defense, justifiable only after everything done to avoid necessity. People v. Sullivan, 7 N. Y. 396; People v. Cole, 4 Park. 35; People v. Harper, Edm. S. C. 180; Shorter v. People, 2 N. Y. 193. See People v. Downs, 56 Hun, 11; 29 N. Y. State Rep'r, 121; note in 6 N. Y. Cr. 119; People v. Carlton, 115 N. Y. 623; 26 N. Y. State Rep'r, 436; People v. Druse, 103 N. Y. 655; People v. Walworth, 4 N. Y. Cr. 378; People v. McGrath, 47 Hun, 325; People v. McCarthy, 110 N. Y. 309; 47 Hun, 491. CHAPTER III. MAIMING. SEC. 206. Maiming defined; how punished. 207. Maiming one's self to escape performance of a duty. 209. What injury may constitute maiming. 210. Subsequent recovery of injured person, when a defense. 206. Maiming defined, how punished.- A person who will. fully, with intent to commit felony, or to injure, disfigure, or disable, inflicts upon the person of another an injury which, 1. Seriously disfigures his person by any mutilation thereof; or 2. Destroys, or disables any member or organ of his body; or 3. Seriously diminishes his physical vigor by the injury of any member or organ ; Is guilty of maiming, and is punishable by imprisonment for a term not exceeding fifteen years. The infliction of the injury is presumptive evidence of the intent. Mayhem. Burke v. People, 4 Hun, 481; Godfrey v. People, 63 N. Y. 207. Indictment. Tully v. People, 67 N. Y. 15; Foster v. People, 50 id. 598. 207. Maiming one's self to escape performance of a duty.- A person who, with design to disable himself from performing a legal duty, existing or anticipated, inflicts upon himself an injury, whereby he is so disabled is guilty of a felony. 208. Maiming one's self to obtain alms.- A person who inflicts upon himself an injury, such as if inflicted upon another would constitute maiming, with intent to avail himself of such injury, in order to excite sympathy, or to obtain alms, or any charitable relief, is guilty of a felony. 209. What injury may constitute maiming. To constitute maiming, it is immaterial by what means or instrument, or in what manner, the injury was inflicted. 210. Subsequent recovery of injured person, when a defense. When it appears, upon a trial for maiming another person, that the person has, before the time of trial, so far recovered from the wound, that he is no longer by it disfigured in personal appearance, or disabled in any member or organ of his body, or affected in physical vigor, no conviction for maiming can be had; but the defendant may be convicted of assault in any degree. 212. Indictment, where triable. 213. Effect of consent of injured person. 214. Selling services of person. 215. Removing from this state persons held to service in another state. 216. Penalty imposed on judicial officers. § 211. Kidnapping defined.-A person who willfully, 1. Seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to be secretly confined or im prisoned within this state, or to be sent out of the state, or to be sold as a slave, or in any way held to service or kept or detained, against his will; or 2. Leads, takes, entices away, or detains a child under the age of sixteen years with intent to keep or conceal it from its parent, guardian, or other person having the lawful care or control thereof, or to extort or obtain money or reward for the return or disposition of the child, or with intent to steal any article about or on the person of the child or, [AMD. CH. 145 of 1888.] 3. Abducts, entices, or by force or fraud unlawfully takes, or carries away another, at or from a place without the state, or procures, advises, aids, or abets such an abduction, enticing, taking, or carrying away, and afterward sends, brings, has, or keeps such per son, or causes him to be kept or secreted within this state; Is guilty of kidnapping, and is punishable by imprisonment for not more than fifteen years. See $282, post. Hadden v. People, 25 N Y. 372; People v. Ruloff, 3 Park. 126; People v. Merrill, 2 Park. 590; S. C., 14 N. Y. 76; Nash v. Benedict, 25 Wend. 645. Subd. 1. Thompson's case, 2 C. H. Rec. 120; Pulford's case, 4 id. 172; Hadden v. People, 25 N. Y. 373; People v. De Leon, 109 N. Y. 228, aff g 47 Hun, 308; Mandeville v Guernsey, 51 Barb. 99. Subd. 2. People v. Nåvagh, 41 Hun, 188; 4 N. Y. Cr. 295; Kauffman v. People, 11 Hun, 82; People v. Tinsdale, 10 Abb. (N. S.) 374; People v. Brunnell, 18 How. 443; Carpenter v. People, 8 Barb. 603; Moody v. People, 20 Ill. 315; Commonwealth v. Brooks, 9 Gray, 299; State v. Rollins, 8 N. H. 550; United States v. Ancarola, 1 Fed. Rep'r. 676; Manes v. State, 20 Texas, 38; Nutt v. State, 19 id. 340, See People v. Frink, 41 Hun, 188; 4 N. Y. State Rep'r, 162; People v. Fitzpatrick, 57 Hun, 461; 32 N. Y. State Rep'r, 1013. 212. Indictment, where triable.-An indictment for kidnapping may be tried either in the county in which the offense was committed, or in any county through or in which the person kidnapped or confined was taken or kept, while under confinement or restraint. § 213. Effect of consent of injured person.-Upon a trial for a violation of this chapter, the consent thereto of the person kidnapped or confined shall not be a defense, unless it appear satisfactorily to the jury that such person was above the age of twelve years, and that the consent was not extorted by threats or duress. People v. De Leon, 109 N. Y. 226; 47 Hun, 313. 214. Selling services.-A person who, within this state or elsewhere, sells or in any manner transfers, for any term, the services or labor of any person who has been forcibly taken, inveigled, or kidnapped in or from this state, is punishable by imprisonment in a state prison not exceeding ten years. People v. Merrill, 2 Park. 590; S. C., 14 N. Y. 75. 215. Removing from this state persons held to service in another state. A 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 special statute, 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. 216. Penalty imposed on judicial officers. A 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 statute of this state, 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. CHAPTER V. ASSAULTS. SEC. 217. Assault in first degree defined. 218. Id.; in second degree. 219. Id.; in third degree. 220. Assault in first degree, how punished. 221. Id; in second degree. 222. Id; in third degree. 223. Use of force or violence, declared not unlawful, etc. 217 Assault in first degree defined. A person who, with an intent to kill a human being, or to commit a felony upon the person or property of the one assaulted, or of another, 1. Assaults another with a loaded fire-arm, or any other deadly weapon, or by any other means or force likely to produce death; or 2. Administers to or causes to be administered to or taken by another, poison, or any other destructive or noxious thing, so as to endanger the life of such other; Is guilty of assault in the first degree. When intent to kill will be inferred. Hagaman's case, 3 C. H. Rec. 73; People ▼. Vinegar, 2 Park 224; Lenahan v. People, 3 Hun, 164; S. C., 5 Th. & C. 265; People v. Shaw, 1 Park. 327; Foster v People, 50 N. Y. 598, 603; People v. Davis, 4 id. 61, 69; S. C., 18 How. 134; O'Leary v. People, id. 187, 193. A bat tery must be intended. People v. Johnson, 9 W. Dig. 384. Statute of assault with intent to steal, still in force. Ex parte Davis, 1 N. Y. Cr. 58. Knowledge of poison. People v. Stokes, 2 N Y. Cr. 382. Indictment, assault first degree. People v. Whedon, 2 N. Y. Cr. 518. Intent to rape. People v. Clark, 3 N. Y. Cr. 280. Subd. 1. O'Blenis's case, 1 C. H. Rec. 117; Mulligan v. People, 5 Park. 105; People v. Carlton, 115 N. Y. 624; People v. Ryan, 55 Hun, 214; 7 N. Y. Cr. 450; People v. Dartmore, 48 Hun, 322; People v. Conner, 53 id. 353; Filkins v. People, 69 N. Y. 101; People v. Cavanaugh, 62 How. 187: People v. Sullivan, 4 N. Y. Cr. 197; People v. Gibbs, 1 id. 473; People v. Odell, 14 W. Dig. 403: State v. Keasling, 74 Iowa, 528; Trevinio v. State, 27 Tex. App. 372; People v. Morehouse, 25 N. Y. State Rep'r, 294; Dunaway v. People, 110 Ill. 333; M'Gehee v. State, 62 Miss. 772; Lacefield v. State, 34 Ark. 275; Chapman v. State, 78 Ala. 463. Subd. 2. People v. Burgess, 45 Hun, 157; 5 N. Y. Cr. 514. See People v O'Connell, 60 Hun, 111; 38 N. Y. State Rep'r, 108; Same v. Same, 35 id. 940; People v. Ryan, 55 Hun, 215; 27 N. Y. State Rep'r, 917; People v. Terrell, 33 id. 370. § 218. Id.; in second degree. A person who, under circumstances not amounting to the crime specified in the last section, 1. With intent to injure, unlawfully administers to, or causes to be administered to, or taken by, another, poison, or any other destructive or noxious thing, or any drug or medicine the use of which is dangerous to life or health; or 2. With intent thereby to enable or assist himself or any other person to commit any crime, administers to or causes to be administered to, or taken by another, chloroform, ether, laudanum, or any other intoxicating narcotic, or anæsthetic agent; or 3. Willfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon: or 4. Willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm; or 5. Assaults another with intent to commit a felony, or to prevent or resist the execution of any lawful process or mandate of any court or officer, or the lawful apprehension or detention of himself, or of any other person; Is guilty of assault in the second degree. See $$ 278, 358, 417, post. Different assaults near same time. Evidence of previous assaults. People v. Irving, 19 W. Dig. 7. People v. Cooper, 3 N. Y. Cr. 117. 1 N. Y. Cr. 473. Intent explained. Subd. 3. Weapon. People v. Irving, 31 Hun, 615; 2 N. Y. Cr. 47. Subd. 4. Filkins v. People, 69 N. Y. 101; Foland v. Johnson, 16 Abb, 235; People v. Hickey, 11 Hun, 631; People v. Cavanagh, 62 How. Pr. 87 ; People v. Connor, 53 Hun, 353; People v. Murray, 54 id. 407 27 N. Y. State Rep'r, 84; People v. Ryan, 55 Hun, 220; 27 N. Y. State Rep'r, 918; People v Terrell, 33 id. 370; People v. Sullivan, 4 N. Y. Cr. 194; People v. Sweeney, id. 275; 41 Hun, 332; People v. Cole, 2 N. Y. Cr. 112; Simpson v. State, 59 Ala. 1. Subd. 5. Assault with intent to rape. Hays v. People, 1 Hill, 351; People v. Bransby, 32 N. Y. 525; People v. Quin, 50 Barb. 128. Levy of constable. People v. Hall, 2 N. Y. Cr. 134. See People v. Clark, 3 N. Y. Cr, 289; People v. Cooper, id. 117: People v. Shanley, 40 Hun, 477; 4 N. Y. Cr. 472; People v. Baker, 89 N. Y. 460; People v. Ryan, 28 N. Y. State Rep'r, 490; People v. Aldrich, 33 id. 791. $219. Id.; in third degree. A person who commits an assault, or an assault and battery, not such as is specified in the foregoing sections of this chapter, is guilty of assault in the third degree. Ch. 374, § 3. of 1962, defining assault with intent to steal, not repealed. People v. Bernardo, 1 N. Y. Cr. 245. Same as assault and battery. 2 id. 168; Matter of Gray, id., 302. Slightest touching of person of another in a rude and angry manner is assault and battery. Spence v. Duffy, 1 C. H. Rec. 39; People |