§ 261. "Day" defined.-[Repealed by ch. 677 of 1892.]

$262. [Repealed by ch. 358 of 1883.]

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§ 263. Servile labor. All labor on Sunday is prohibited, excepting the works of necessity or charity. In works of necessity or charity is included whatever is needful during the day for the good order, health or comfort of the community. [AMD. CH. 358 of 1883.]

Work of necessity. Morris v. State, 31 Ind. 189; State v. Goff, 20 Ark. 289. See §§ 263, 265, 267, 268, post; Eberle v. Mehrbach, 55 N. Y. 682; People v. Lyons, 5 Hun, 643; Brunnett v. Clark, 1 Sheld. 50; Sun, etc., Association v Tribune Association, 12 J. & Sp. 136; Brooklyn v. Toynbee, 31 Barb. 282. See Merrit v. Earle, 29 N. Y. 122 Dinsmore v. Board, etc., 12 Abb. N. C. 437; Batsford v. Every, 44 Barb. 618; Miller v. Roessler, 4 E. D. Smith, 234; Bilordeaux v. Lithographic Co., 30 N. Y. State Rep'r, 656; 9 N. Y. Supp. 507; State v. Railroad Co., 28 W. Va. 783.

264. Persons observing another day as a Sabbath. It is a sufficient defense to a prosecution for work or labor on the first day of the week, that the defendant uniformly keeps another day of the week as holy time, and does not labor on that day, and that the labor complained of was done in such manner as not to interrupt or disturb other persons in observing the first day of the week as holy time. [AMD. CH. 519 of 1885.]

Maxon v. Annas, 1 Denio, 204; Anonymous, 12 Abb. N. C. 457; Isaacs v. Beth, etc., Soc., 1 Hilton, 469; Johns v. State, 78 Ind. 332; Com. v. Has, 122 Mass. 40; City of Shreveport v. Levy, 26 La. Ann. 671; Scales v. State, 47 Ark. 476; Swann v. Swann, 21 Fed. Rep'r, 299.

265. Public sports. All shooting, hunting, fishing, playing, horse racing, gaming or other public sports, exercises or shows, upon the first day of the week, and all noise disturbing the peace of the day, are prohibited. [AмD. CH. 358 of 1883.] People v. Dennin, 35 Hun, 327; 3 N. Y. Cr. 128.

§ 266. Trades, manufactures and mechanical employments. All trades, manufactures, agricultural or mechanical employments upon the first day of the week are prohibited, except that when the same are works of necessity they may be performed on that day in their usual and orderly manner, so as not to interfere with the repose and religious liberty of the community. [AMD. CH. 358 of 1883.]

Manhattan I. Works Co. v. French, 12 Abb. N. C. 448: Sanders v. Staten I. R. Co., 13 Abb. (N. S) 355; Anonymous, 12 Abb. N. C. 458; Com. v. Dextra, 143 Mass. 28; State v. Federich, 45 Ark. 347: People v. Lyons, 5 Hun, 643; Yonoski v. State, 79 Ind. 393; Wilkinson v. State, 59 id. 416; Com. v. Louisville, etc., R. Co., 80 Ky. 291; Phil., etc., R. Co v. Lehman, 56 Md. 209; Muller v. State, 76 Ind. 310; Phelps v. Board, etc., 5 Law Bull. 13; Hennersdorf v. State, 11 Cr. L. Mag. 179.

267. Public traffic. All manner of public selling or offering for sale of any property upon Sunday is prohibited, except that articles of food may be sold and supplied at any time before ten o'clock in the morning, and except also that meals may be sold to be eaten on the premises where sold or served elsewhere by caterers; and prepared tobacco, milk, ice and soda water in places other than where spirituous or malt liquors or wines are kept or offered for

sale, and fruit, flowers, confectionery, newspapers, drugs, medicines and surgical appliances may be sold in a quiet and orderly manner at any time of the day. [AMD. BY CHAP. 648 of 1896. In effect May 14, 1896.

Boynton v. Page, 13 Wend. 425; Anonymous, 12 Abb. N. C. 458; State v. Ohmer, 11 Cr. L. Mag. 378.

§ 268. Serving process on Sunday prohibited. All service of legal process of any kind whatever, upon the first day of the week, is prohibited, except in cases of breach of the peace, or apprehended breach of the peace, or when sued out for the apprehension of a person charged with crime, or except where such service is specially authorized by statute. Service of any process upon said day except as herein permitted is absolutely void for any and every purpose whatever. [AMD. CH. 622 of 1892. In effect June 6, 1892.]

See § 2015 of Code of Civ. Proc.; Hastings v. Farmer, 4 N. Y. 296; Butler v Kelsey, 15 Johns. 177; Van Vechten v. Paddock, 12 id. 178.

$269. Sabbath breaking. - Sabbath breaking is a misdemeanor, punishable by a fine not less than five dollars and not more than ten dollars, or by imprisonment in a county jail not exceeding five days, or by both, but for a second or other offense, where the party shall have been previously convicted, it shall be punishable by a fine not less than ten dollars and not more than twenty dollars, and by imprisonment in a county jail not less than five nor more than twenty days. [AMD. CH. 535 of 1887.]

$270. Forfeiture of commodities exposed for sale. In addition to the penalty imposed by the last section, all property and commodities exposed for sale on the first day of the week in violation of the provisions of this chapter shall be forfeited. Upon conviction of the offender by a justice of the peace of a county, or by any police justice or magistrate, or by a mayor, recorder or alderman of a city, such officer shall issue a warrant for the seizure of the forfeited articles, which, when seized, shall be sold on one day's notice, and the proceeds paid to the overseers of the poor, for the use of the poor of the town or city. [AMD. BY CH. 358 of 1883.]

$271. Remedy for maliciously serving process. Whoever maliciously procures any process in a civil action to be served on Saturday, upon any person who keeps Saturday as holy time, and does not labor on that day, or serves upon him any process returnable on that day, or maliciously procures any civil action to which such person is a party to be adjourned to that day for trial, is guilty of a misdemeanor.

Maxson v. Annas, 1 Den. 204.

272. Compelling adoption of a form of belief.-An attempt by means of threats or violence, to compel any person to adopt, practice or profess a particular form of religious belief, is a misdemeanor. See § 3, art. 1 of State Const.; first amendment, Fed. Const.

$273. Preventing performance of religious act.-A person who willfully prevents, by threats or violence, another person from performing any lawful act enjoined upon or recommended to such person by the religion which he professes, is guilty of a misdemeanor.

274. Disturbing religious meetings.- A person who willfully disturbs, interrupts or disquiets any assemblage of people met for religious worship, by any of the acts enumerated in the next section, is guilty of a misdemeanor.

See §§ 448, 650, post; Wall v. Lee, 34 N. Y. 141: People v. Brown, 1 Wh. Cr. C. 124; People v. Crowley, 23 Hun, 412; People v. Degey, 2 Wh. Cr. C. 135; State v. Smith, 5 Harring, 490. Bad singing. State v. Linkhaw, 69 N. C. 214; S. C., 1 Green's Cr. R. 488; State v. Jasper, 4 Dev. 323; First Bapt. Ch. v. Utica & S. R. Co., 6 Barb. 319; Foster v. Smith, 10 Wend. 377; Farren v. Warren, 3 id. 253; Becket v. Lawrence, 7 Abb. (N. S.) 403.

$275. Disturbing religious meetings; definition of the offense.The following acts, or any of them, except as permitted by chapter four hundred and seventy-nine of the laws of eighteen hundred and eighty-seven or the acts amendatory thereof, constitute a disturbance of a religious meeting:

1. Uttering any profane discourse, committing any rude or indecent act, or making any unnecessary noise, either within the place where such meeting is held, or so near it as to disturb the order and solemnity of the meeting.

2. Engaging in, or promoting, within two miles of the place where a religious meeting is held, any racing of animals or gambling of any description; or elsewhere than in a city or village keeping open any huckster shop, inn, store or grocery, in any other place than that in which such business shall have usually been carried on; or elsewhere than in a city exhibiting within the distance aforesaid any shows or plays, unless the same shall have been duly licensed by the proper authorities.

3. Obstructing in any manner without authority of law, within the like distance, free passage along a highway to the place of such meeting. [AMD. BY CH. 292 of 1893.]

People v. Crowley, 23 Hun, 412; State v. Linkhaw, 69 N. C. 214: Lancaster v. State, 53 Ala. 393; Brown v. State, 46 id. 175; Wood v. State, 11 Tex. App. 318; Hunt v. State, 3 id. 116; State v. Edwards, 32 Mo. 550; Jenning's case, 3 Gratt. 624; Hollingsworth v. State, 5 Sneed, 518; Williams v. State, 3 id. 313; Layne v. State, 4 Lea, 199; Cockreham v. State, 7 Humphreys, 11.

276. Processions and parades, punishment.-All processions and parades on Sunday in any city, excepting only funeral processions for the actual burial of the dead, and processions to and from a place of worship in connection with a religious service there celebrated, are forbidden; and in such excepted cases there shall be no music. fireworks, discharge of cannon or firearms, or other disbursing* noise. At a military funeral, and at the burial of a national guardsman, or of a deceased member of an association of veteran soldiers, or of a disbanded militia regiment, or of a secret fraternal society, music may be played while escorting the body, but not within one block of a place of worship where service is then celebrated. A person willfully violating any provision of this section is punishable by fine not exceeding twenty dollars or imprisonment not exceeding ten days, or by both. [AMD. BY CH. 778 of 1895. In effect June 16, 1895.]

277. Theatrical and other performances.- The performance of any tragedy, comedy, opera, ballet, farce, negro minstrelsy, negro or other dancing, wrestling, boxing with or without gloves, sparring contest, trial of strength, or any part or parts therein, or any circus, equestrian, or dramatic performance or exercise, or any performance or exercise of jugglers, acrobats, club performances or ropedancers, on the first day of the week, is forbidden; and every person aiding in such exhibition, performance or exercise, by advertisement, posting or otherwise, and every owner or lessee of any garden, building or other room, place or structure, who leases or lets the same for the purpose of any such exhibition or performance or exercise, or who

So in original

assents to the use of the same for any such purpose, if it be so used, is guilty of a misdemeanor.

In addition to the punishment therefor provided by statute, every person violating this section is subject to a penalty of five hundred dollars; which penalty The Society for the Reformation of Juvenile Delinquents" in the city of New York, for the use of that society, and the overseers of the poor in any other city or town, for the use of the poor, are authorized, in the name of the people of this state, to recover. Besides this penalty, every such exhibition, performance or exercise, of itself, annuls any license which may have been previously obtained by the manager, superintendent, agent, owner or lessee, using or letting such building, garden, room, place or other structure, or consenting to such exhibition, perform. ance or exercise. [AMD. CH. 358 of 1883.]

Constitutional, Neuendorf v. Duryea, 69 N. Y. 557; S.C., 6 Daly, 276.

CHAPTER II.

RAPE, ABDUCTION, CARNAL ABUSE OF CHILDREN, AND SEDUCTION.

278. Rape defined.-A person who perpetrates an act of sexual intercourse with a female not his wife, against her will or without her consent, or,

1. When through idiocy, imbecility or any unsoundness of mind, either temporary or permanent, she is incapable of giving consent, or, by reason of mental or physical weakness, or immaturity, or any bodily ailment, she does not offer resistance; or,

2. When her resistance is forcibly overcome; or,

3. When her resistance is prevented by fear of immediate and great bodily harm, which she has reasonable cause to believe will be inflicted upon her; or,

4. When her resistance is prevented by stupor, or weakness of mind produced by an intoxicating, or narcotic, or anæsthetic agent; or, when she is known by the defendant to be in such state of stupor or weakness of mind from any cause; or,

5. When she is, at the time, unconscious of the nature of the act, and this is known to the defendant, or when she is in the custody of the law, or of any officer thereof, or in any place of lawful detention, temporary or permanent, is guilty of rape in the first degree and punishable by imprisonment for not more than twenty years. A person who perpetrates an act of sexual intercourse with a female, not his wife, under the age of eighteen years, under circumstances not amounting to rape in the first degree, is guilty of rape in the second degree, and punishable with imprisonment for not more than ten years. [The section was amended by ch. 325 of 1892; subd. 5, by ch. 460 of 1895. In effect September 1, 1895.]

See latter part of amending act in § 303, post.

See § 218, sub. 2, supra. Rape. Force. Walter v. People, 50 Barb. 144. Resistance. People v. Dohring, 59 N. Y. 374; State v. Burgdorf, 53 Mo. 65; Strang v. People, 24 Mich. 1. Insensibility. People v. Quinn, 50 Barb. 128. By fraud. People v Bartow, 1 Wh. Cr. C. 378. Incest is merged in rape. People v. Harriden, 1 Park. 344. No felonious assault in case of consent. People v. Persons, 2 N. Y. Cr. 114; People v. Bransby, 32 N. Y. 525; State v. Niles, 47 Vt. 82. Consent. State v. Hartigan, 32 Vt. 607, Hull v. State, 22 Wis. 580; People v. Jackson, 3 Park. 391; Woodin v. People, 1 id. 464; People v. Abbott, 19 Wend. 191, 201. Proof of character of prosecutrix admissible. Brennan v. People, 7 Hun, 171; and may be contradicted as to other acts, id. Indictment. People v Draper, 28 Hun, 1. Sub. 1. People v. Stamford, 2 Wh. Cr. C. 152; Singer v. People, 13 Hun, 418; Stephen v. State, 11 Ga 225; State v. Farmer, 4 Ired, 224. Indictment. Singer v. People, 13 Hun, 418; 75 N. Y. 608.

Sub. 2. Reg. v. Fletcher, 8 Cox Cr. C. 131; Reg. v. Ryan, 2 id. 115; State v. Cron., 10 West. L. J. 501; McNamara's case, Oakley, 521.

Sub. 3. People v. Morrison, 1 Park. 625. Resistance necessary by child over ten years. People v. Dohring, supra; People v. C. S. S., 18 Hun, 330; Charles v. State, 6 Eng. 389; State v. Jim, 1 Den. 142; Pollard v. State, 2 Clarke, 567; Myatt v. State, 2 Swan, 394; Lewis v. State, 30 Ala. 54; State v. Blake, 39 Mo. 322; Barney v. People, 22 III. 160; People v. Clemons, 37 Hun, 580.

Sub. 4. Pleasant v. State, 8 Eng. 360; Wright v. State, 4 Humph. 194; Reg. v. Hallett, 9 Car. & P. 748; Reg. v. Day, id. 722; Croghan v. State, 22 Wis. 444; Wright v. State, 4 Humph. 194.

Sub. 5. People v. Quinn, supra; Reg. v. Camplin, 1 Cox Cr. C. 220; Whart. & Stille Med. Jur., §§ 441-443.

Sub. 6. Anon., 1 Wh. Cr. C. 381, n. See People v. Bartow, supra. See Gordhon's case, 3 C. H. Rec. 91; People v. Quinn, supra; Walter v. People, 50 Barb. 144 See People v. Connor, 31 N. Y. State Rep'r, 168; People v. Bowles, 3 N. Y. Cr. 447; People v. Clemons, id. 565; Gongleman v. People, 3 Park. 15; People v O'Sullivan, 104 N. Y. 481; Higgins v. People, 1 Hun, 307; aff'd, 58 N. Y. 377; People v. Crowley, 102 id. 234; People v. Batterson, 50 Hun, 46; Baccio v. People, 41 N. Y. 265; People v. Stott, 5 N. Y. Cr. 61; Zophi v. Smith, 55 Hun, 551; Woodin v. People, 1 Park. 464; Conkey v. People, 5 id. 31; 1 Abb. Dec. 418; Higgins v. People, 58 N. Y. 377; Woods v. People, 55 id. 515; Brennan v. People, How. 171; Hays v. People, 1 Hill, 351; People v. Maxon, 57 Hun, 367; 32 N. Y. State Rep'r, 132; People v. Aldrich, 33 id, 790; Com. v. Burke, 105 Mass. 376; People v Connor, 37 N. Y. State Rep'r, 25, aff`g 31 id. 162; People v. De Leon, 109 N. Y. 230; People v. Draper, 28 Hun, 1; People v. Zimmerman, 1 N. Y. State Rep'r, 468; People v. Clark, 3 N. Y. Cr. 280; Stephens v. State, 24 Alb. L. J. 228.

§ 279. When physical ability must be proved. — No conviction for rape can be had against one who was under the age of fourteen years, at the time of the act alleged, unless his physical ability to accomplish penetration is proved as an independent fact, beyond a reasonable doubt.

People v. Randolph, 2 Park. 174. Child under fourteen cannot be convicted of assault with intent to rape, unless ability proved. See Williams v. State, 14 Ohio, 222; People v. Croucher, 2 Wheeler Cr. Cases, 42: Wagoner v. State, 5 Lea, 352; 40 Am. Rep. 36; Hiltabiddle v. State, 35 Ohio, 52; 35 Am. Rep. 595. See 10 Cr. L. Mag. 89.

§ 280. Penetration sufficient.

Any sexual penetration, however slight, is sufficient to complete the crime.

People v. Crowley, 102 N. Y. 237; 4 N. Y. Cr. 168; Taylor v. State, 111 Ind. 279; Brown v. State, 76 Ga. 623. See 80 Am. Dec. 361.

281. Compelling woman to marry. A person who by force, menace or duress, compels a woman against her will to marry him, or to marry any other person, or to be defiled, is punishable by imprisonment for a term not exceeding ten years, or by a fine of not more than one thousand dollars, or by both.

See § 282, subd. 3, post. Fraud unattended by force or intent to use force, not rape. Walter v. People, 50 Barb. 144. See Beyer v. People, 86 N. Y. 369; Schnicker v. People, 88 id. 192.