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tion of such penetration is not material, neither is seminal emission necessary to complete the crime.

Read 4 Bl. Comm., p. 210.

1 H. P. C.,

p. 628.

3 Chitty C. L., p. 810.

1 Russ. Cr., pp. 678–686.

2 Arch. Cr. Pr., pp. 152–158, 162–166.

2 Whart. C. L., §§ 1137–1140.

2 Bish. C. L., §§ 1107-1115, 1127-1132.
3 Greenleaf Ev., §§ 209, 210.

§ 417. Of Rape. The Unlawful Carnal Knowledge. Carnal knowledge is always lawful, when it takes place between a man and his lawful wife. In all other cases, it is unlawful, whether the woman consents or not, though not, in all such cases, punishable as a crime.

Read 2 Arch. Cr. Pr., p. 158.

2 Whart. C. L., § 1136.

§ 418. Of Rape. The Want of Consent. Force. All unlawful carnal knowledge is rape, unless the woman gives her intelligent and voluntary consent thereunto. If she yields to persuasion, or if her consent be elicited by fraud, it is no rape. But if she openly refuses, or if her acquiescence be merely passive, as if she be stupefied with drink or be insane, or if her resistance be prevented by fear of death or by ignorance of the nature of the act, it is rape. A female under the age of ten years cannot, in law, consent to sexual intercourse, and carnal knowledge of such a female is, therefore, always A male under the age of fourteen years is presumed by law to be incapable of the sexual act, and proof of the

rape.

contrary will not be permitted. Such a person, conse quently, cannot commit rape.

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§ 419. Of Rape. The Evidence of the Complainant. The woman ravished is a competent, though not always a credible, witness against the accused, in prosecutions for this crime. If she be of good repute, if she presently discovered the offence and made pursuit of the offender, if she showed signs and marks of the injury, if the place where she alleges the act to have been done were remote from observation, and if the offender fled for it, her testimony is of great weight, and may alone be sufficient for conviction. But if she be of bad repute, or if she concealed the injury after she had opportunity to complain, or if the place where she alleges it to have been committed were public and inhabited, and she made no outcry; these, and similar circumstances, cast grave doubts upon her story. For though rape is a heinous crime, and, when actually committed, merits severe punishment, yet accusations of it are always to be regarded with suspicion, being often, if not generally, made either under sexual hallucina tion, or for purposes of extortion or revenge.

Read 4 Bl. Comm., pp. 213-215.

1 H. P. C., pp. 632-636.

3 Chitty C. L., pp. 812, 813.

1 Russ. Cr., pp. 688-691, 694, 695.

2 Arch. Cr. Pr., pp. 169–175.
2 Whart. C. L., §§ 1149–1152.

CHAPTER V.

OF FELONIES AGAINST THE PROPERTY OF INDIVIDUALS.

§ 420. Of Arson. The Burning.

Felonies, at common law, against the property of individuals, are four: Arson; Burglary; Theft; and Robbery. Arson is the unlawful burning of the house of another. This crime presents four points for discussion: (1) The burning; (2) Its unlawfulness; (3) The house; and (4) Its ownership. To constitute a burning, either the whole house, or some integral part thereof, must be actually destroyed by fire. If it be merely blackened by smoke, or scorched by flame, without destruction of its substance, or if that which is burned be personal property only, however wilful and malicious such burning may be, it is not arson. But the destruction by fire of any part of the house, whether great or small, is a burning; nor does it matter though the fire endures but a moment, or even goes out of itself. Read 4 Bl. Comm., pp. 220, 222.

3 Chitty C. L., p. 1104.

2 Russ. Cr., pp. 548, 549.

2 Arch. Cr. Pr., pp. 709, 712–714.

2 Whart. C. L., §§ 1658-1662.

2 Bish. C. L., §§ 8, 10.

3 Greenleaf Ev., § 55.

§ 421. Of Arson. The Unlawful Burning.

and is not in pursuance

Every burning, which is wilful of some public duty, is unlawful. An involuntary burning, by negligence or accident, is not a crime; nor is a wilful

burning criminal, when done by competent authority in order to impede a conflagration, stay a pestilence, or subserve some necessity of war. But a burning, which is wilful and without authority, will be unlawful, although the actor may not have intended to destroy the house by fire. A felon who, in the perpetration of his felony, employs means calculated to set fire to a house, or one who burns his own house, under circumstances which render it apparent that adjacent houses will also be burned, will, if such house or houses actually be consumed, be guilty of arson.

Read 4 Bl. Comm., p. 222.

3 Chitty C. L., pp. 1104, 1105.
2 Russ. Cr., pp. 549, 550.
2 Arch. Cr. Pr., pp. 723-727.

2 Whart. C. L., §§ 1663-1665.
2 Bish. C. L., §§ 14-16.

3 Greenleaf Ev., §§ 53, 56.

§ 422. Of Arson.

The House.

A

A house is a building used for human habitation. If it were erected for that purpose but never yet occupied, or if, having been so occupied, it is now abandoned, it is not a house, in the sense in which that word is used in defining arson and burglary. But the temporary absence of its occupants does not take away its character as a dwelling. house includes not only the building actually occupied as an abode, but all other buildings which immediately communicate therewith, or are in the same curtilage or common fence, or are within a reasonable distance from the dwelling, and, in their use, are subservient thereunto

Read 4 Bl. Comm., pp. 221.

3 Chitty C. L., pp. 1105, 1106.

2 Russ. Cr., p. 552.

2 Arch. Cr. Pr., pp. 714-720.
2 Whart. C. L., §§ 1667-1670.
3 Greenleaf Ev., § 52.

§ 423. Of Arson. The Ownership of the House.

The ownership of a house, as regards this crime, is in him who has the legal right of occupation. A man cannot commit arson by burning a house in which he has a right to abide, whether he be the owner in fee, or a mere tenant for years or at will. But a servant or other person, temporarily residing in a house but not having the legal possession thereof, has no such ownership, neither has the owner of the fee as long as the actual right of occupation is in another.

Read 4 Bl. Comm., p. 221.

3 Chitty C. L., pp. 1106, 1107.

2 Russ. Cr., pp. 550, 551.

2 Arch. Cr. Pr., pp. 720-723.

2 Whart. C. L., §§ 1671, 1672, 1675-1677.

2 Bish. C. L., §§ 12, 13.

2 Bish. C. P., §§ 36-38.

3 Greenleaf Ev., §§ 54, 57.

§ 424. Of Burglary. The Breaking.

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Burglary is the breaking and entering, in the night season, of the dwelling-house of another, with the intent to commit a felony therein. Six points are here to be considered: (1) The breaking; (2) The entering; (3) The night season; (4) The dwelling-house; (5) Its ownership; and (6) The felonious intent. (Breaking is the removal of any portion of the house, which is relied upon as a security against intrusion, and which, as much as the nature of the case admits, actually serves as such security. Thus the opening of a door or window, or the removal of a screen or netting, is a breaking. Where, as in the case of a chimney, an aperture cannot be closed by any substance capable of being removed, an entrance through the aperture involves a breaking. But breaking does not neces

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