of taking his property or money from him, the right of search is not a defense, but the jury must determine the intent of the officer in taking the property upon all the circumstances.65

66

Where the accused alleges that at the time of committing the crime or robbery, he was incapable of entertaining any intent. because of his intoxication, the question of intent is for the jury on all the circumstances. It may be proved that the thief was disguised. So, too, in robbery as in larceny, the possession of the stolen property by the accused, if recent and unexplained, may justify an inference that he was implicated in it. But the accused must always be allowed to explain his possession of the property, and on the whole, the possession of the property, while a circumstance to be considered in any case, is by no means conclusive of the guilt of the accused.68

69

And it has also been held that it was proper to permit the state to show that articles taken from the person robbed were found in the possession of a woman with whom the accused had been very intimate where the possession was recent. The ownership of the money may be inferred as being in the person robbed from the fact that it was taken from his possession.To Evidence that the defendant owns property is inadmissible." So it has been held that evidence to show that the accused for a long time prior to the date of the crime, had a large sum of money in his

65 State v. McAllister, 65 W. Va. 97, 63 S. E. 758; Wynn v. Commonwealth (Ky., 1909), 122 S. W. 516.

66 Latimer v. State, 55 Neb. 609, 76 N. W. 207, 70 Am. St. 403.

67 State v. Harris, 97 Iowa 407, 66 N. W. 728; State v. Wyatt, 124 Mo. 537, 27 S. W. 1096; Bradley v. State, 103 Ala. 29, 15 So. 640; State v. Balch, 136 Mo. 103, 37 S. W. 808; People v. Mackinder, 80 Hun (N. Y.) 40, 29 N. Y. S. 842; State v. Moore, 106 Mo. 480, 17 S. W. 658; Tabor v. State, 52 Tex. Cr. 387, 107 S. W. 1116; Elliott Evidence, 8 3136. Evidence tending to show that the taking was under claim of title is admissible to show that there was not

felonious intention. Brown v. State, 28 Ark. 126; State v. Hollyway, 41 Iowa 200, 20 Am. 586; Carr v. State, 55 Tex. Cr. 352, 116 S. W. 591.

People v. Hallam, 6 Cal. App. 331, 92 Pac. 190.

69

"Clay v. State, 122 Ga. 136, 50 S. E. 56.

TO Bow v. People, 160 Ill. 438, 43 N. E. 593; People v. Oldham, 111 Cal. 648, 44 Pac. 312; Riggs v. State, 104 Ind. 261, 3 N. E. 886; People v. McDonald (Cal., 1896), 45 Pac. 1005: State v. Adams, 58 Kan. 365, 49 Pac. 81; State v. Howard, 30 Mont. 518, 77 Pac. 50; Elliott Evidence, § 3130. Reynolds v. State, 147 Ind. 3. 46 N. E. 31.

71

72

73

house is inadmissible. But on the other hand it may be proved that the accused on the day before the robbery was without money, and wore shabby clothing and, that on the day after the robbery he appeared in a new suit of clothes and exhibited.or boasted of having large sums of money in his possession. The person robbed may always testify that he had the money or other property which is alleged to have been stolen in his possession. These facts may be proved by other persons. Indeed, it may be shown that shortly before the robbery he was seen to have been spending money and that he exhibited money, had it in his possession, and particularly that he exhibited or spoke of having money in the presence of the accused." Evidence of other robberies or of attempts to commit other robberies at or about the same time as the one for which the accused is being tried and with which the accused is connected may be shown to identify the accused or to show his intention.75 Anything the person robbed may have said during the assault which preceded or accompanied the robbery, if a part of the res gestæ, is admissible.T

$359. The crime of mayhem.-The facts which must be proved to sustain an allegation of mayhem at common law are: First, the injury; second, malice," and third, an intent to maim and disfigure. Thus a conviction of an attempt to commit mayhem cannot be sustained by proof of the throwing of red pepper into

72

Craig v. State, 171 Ind. 317, 86 N. E. 397.

73

"See Green v. State, 151 Ala. 14, 44 So. 194, 125 Am. St. 17, as to dis

People v. Sullivan, 144 Cal. 471, tinction between "malice" and "malice aforethought."

77 Pac. 1000.

State v. Howard, 30 Mont. 518, 77 Pac. 50; Wyatt v. State, 55 Tex. Cr. 73, 114 S. W. 812; Tabor v. State, 52 Tex. Cr. 387, 107 S. W. 1116, 62 L. R. A. 193, extensive note; Elliott Evidence, § 3137.

"State v. Ripley, 32 Wash. 182, 72 Pac. 1036; State v. Finn, 199 Mo. 597, 98 S. W. 9; Elliott Evidence, § 3134.

78 United States v. Gunther, 5 Dak. 234, 241, 38 N. W. 79; Bowers v. State, 24 Tex. App. 542, 549, 7 S. W. 247, 5 Am. St. 901; Davis v. State, 22 Tex. App. 45, 51, 2 S. W. 630; State v. Johnson, 58 Ohio St. 417, 51 N. E. 40, 65 Am. St. 769n; Carpenter v. People, 31 Colo. 284, 72 Pac. 1072, holding that, under Laws 1895, p. 156, c. 69, a specific intent to maim is not necessary to be proved.

the eye of another where it appears that the substance thrown would not destroy the eye unless allowed to remain an extraordinary time. Malice,80 and the specific intent to injure, disfigure or maim may always be inferred from the circumstances under the rule that a man may be inferred to have intended the natural, probable and reasonable consequences of his acts.1 Premeditation existing prior to the conflict in which the injury was inflicted is not necessary.82

The circumstances attending the injury may be shown to rebut the intent by proving the defendant inflicted the injury under pressure of necessity or while lawfully defending himself, or that it was purely accidental.83 A previous assault upon the defendant is admissible in justification. It must be made to appear that the striking was in self-defense and that the force employed was in proportion to the attack. Son assault is a good plea in mayhem, but it must appear that the resistance was in proportion to the nature of the injury offered.8*

§ 360. Sodomy.-This crime may be defined as the carnal copu lation of one human being with another in a manner "against nature," or, to be more definite, in any manner than that provided by nature. Bestiality is the carnal copulation of a man or woman with a beast. Writers upon criminal law have frequently, and with reason, called attention to the ease with which one may be accused of this crime and the extreme difficulty of proving its

Dahlberg v. People, 225 Ill. 485, 80 N. E. 310.

So State v. Bloedow, 45 Wis. 279; State v. Evans, 1 Hayw. (N. Car.) 281.

State v. Hair, 37 Minn. 351, 354, 34 N. W. 893; State v. Jones, 70 Iowa 505, 30 N. W. 750; Davis v. State, 22 Tex. App. 45, 51, 2 S. W. 630; State v. Abram, 10 Ala. 928, 931; State v. Girkin, 1 Ired. (N. Car.) 121, 122; Ridenour v. State, 38 Ohio St. 272, 274.

82

State v. Simmons, 3 Ala. 497, 498; State v. Crawford, 2 Dev. (N. Car.) 425, 427.

83 State v. Hair, 37 Minn. 351. 354, 34 N. W. 893. Compare Green v. State, 151 Ala. 14, 44 So. 194, 125 Am. St. 17.

"Hayden v. State, 4 Blackf. (Ind.) 546, 547; Green v. State, 151 Ala. 14 44 So. 194, 125 Am. St. 17. A previous threat or attempt by the defendant to assault the prosecuting witness before the final assault is relevant. People v. Demasters, 109 Cal. 607, 42 Pac. 236.

85

See Bish. Cr. Law, 1029, 4 Bl Com. 415; Commonwealth v. Thomas, I Va. Cas. 307.

86

commission. If the crime is consummated, both parties consenting thereto, each is an accomplice of the other and neither can be convicted upon the uncorroborated testimony of the other. And, as the crime is usually committed when no third person is present, corroboration is very difficult, if not impossible to obtain, except so far as it may be found in circumstances which would naturally accompany the commission of such an offense. 87 When, however, the crime is attempted or committed without or against the consent of the pathic party he is not an accomplice, and a conviction may be had upon his testimony alone. Whether he consented is a question for the juryss in all cases where the evidence is at all doubtful. Evidence to show that he did or did not consent is always relevant,89 particularly in the case of a charge of an assault with intent to commit sodomy.89a But a minor under twelve years of age cannot consent so that his submission without resistance does not constitute a defense.""

§ 361. Criminal libel defined. This may be defined as a publication in print or writing without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, ridicule or contempt.91 The state must prove the following facts: First, the publication by the defendant; second, that the matter published is libelous; third, the intent, and, fourth, when the truth is admissible in defense, the falsity of the assertions made.92

SS Medis v. State, 27 Tex. App. 194, Pac. 1027. See Commonwealth v. II S. W. 112, 11 Am. St. 192. Snow, III Mass. 411.

"See Williams v. Commonwealth (Va., 1895), 22 S. E. 859; Territory v. Mahaffey, 3 Mont. 112; Hodges v. State, 94 Ga. 593, 19 S. E. 758; People v. Boyle, 116 Cal. 658, 48 Pac. 800. The declarations of the person assaulted are not admissible unless said in the presence of the accused, as direct evidence, though perhaps admissible as corroboration. Foster v. State, 1 Ohio Cir. Ct. 467, 1 Ohio Cir. Dec. 261; State v. Gruso, 28 La. Ann. 952.

$8

91

People v. Croswell, 3 Johns. Cas. (N. Y.) 337; Raker v. State, 50 Neb. 202, 69 N. W. 749; People v. Ritchie, 12 Utah 180, 42 Pac. 209; Elliott Evidence, § 3169.

"Odgers on Libel and Slander 580. Criminal libel is "malicious defama

People v. Hickey, 109 Cal. 275, 41 tions, expressed in printing or writ

93

94

§ 362. The publication of the libel.-The publication of the libel in language substantially as laid in the indictment must be proved. A slight variance between the publication as proved by a copy and the indictment may be disregarded. If the libel is in writing the production of the writing, with sufficient proof that it is in the handwriting of the accused, is enough. If the libel was printed either in a book or newspaper, the production of a copy with proof that it was purchased within the territorial jurisdiction of the court, will raise a presumption of publication."5 Proof that the accused is the editor or publisher of the newspaper in which the alleged libelous article was published is sufficient to connect him with the publication. He cannot prove that he never saw the libel in fact. Nor can it be shown in his favor that he had no actual knowledge of the publication. To sustain the allegation of publishing in a charge of criminal libel it is not necessary to prove that the matter complained of was actually seen by another person. If it is proved beyond a reasonable doubt that the accused knowingly displayed the libelous matter, or parted with it under circumstances which exposed it to be seen or understood by another than himself, the proof suffices."

ing, or by signs or pictures, tending either to blacken the memory of one who is dead, or the reputation of one who is living, and thereby to expose him to public hatred, contempt and ridicule." State v. Shaffner, 2 Penn. (Del.) 171, 44 Atl. 620.

93

"A slight variance between the publication as proved by a copy and the indictment may be disregarded. Collins v. People, 115 Ill. App. 280; Hartford v. State, 96 Ind. 461, 49 Am. 185; McArthur v. State, 41 Tex. Cr. 635, 57 S. W. 847; Gipson v. State (Tex., 1903), 77 S. W. 216.

Rex v. Beare, 1 Ld. Rd. 414. 95 Commonwealth v. Morgan, 107 Mass. 199, 202. And evidence to show the number of papers containing the libel which were printed or sold, or to prove its general circulation, is always competent. Boyle v. State, 6 Ohio Cir. Ct. 163, but never

96

It

indispensable. Baker v. State, 97 Ga. 452, 25 S. E. 341.

96

Commonwealth v. Morgan, 107 Mass. 199, 202. Papers signed by the accused as president of the paper publishing the libel are admissible to show his connection with the paper. Boyle v. State, 6 Ohio Cir. Ct. 163, 3 Ohio Cir. Dec. 397. Hostile feeling between the accused and the prosecuting witness may be shown. People v. Ritchie, 12 Utah 180, 42 Pac. 209. See also, United States v. Crandell, 4 Cranch C. C. (U. S.) 683, 25 Fed. Cas. 14885, as to proof of finding other copies of same libel in possession of the accused.

97 Giles v. State, 6 Ga. 276; New York Penal Code, 245. See also. Haase v. State, 53 N. J. L. 34. 20 Atl. 751; State v. Barnes, 32 Me. 530.