and indefinite in its terms; and, 3. That it is out of place in a code of procedure. But for the fact that their attention has been specially called to these objections, and that some very learned lawyers have regarded this provision with marked ridicule, the Commissioners would have contented themselves, with a very brief note of the provision of the revised statutes from which it has been copied. The criticisms which have been made upon it, however, lead them, as an act of justice to themselves, to dwell for a few moments upon the objections above referred to. First, then, it is said that this section is an innovation upon the rules of evidence. The following is the provision of the revised statutes, from which this section has been copied:" Proof of actual penetration into the body, shall be sufficient to sustain an indictment for rape, or for the crime against nature." 2 R. S, 3d. ed, 820, sec. 18. The only difference between the section as proposed in the code, and that contained in the revised statutes, it will be perceived, is the substitution in the code, of the present, for the future tense. This has been done in accordance with the custom, in acts declaratory of existing rules, and not prescribing new ones, to adopt that form of expression. In regard to the wisdom of the rule, as thus prescribed, the Commissioners need only to refer to the notes of the revisers of the statutes. 3 R. S., 2d. ed., 848, note to sec. 17. From these it appears, that thes ection as reported by the revisers, contained the following addition:-" without evidence of the circumstances which usually terminates a sexual connexion." This addition, however, was stricken out by the legislature, and the section passed as above quoted. The reasons for its introduction are thus stated by the revisers, in the note above referred to. "By the common law, a most indelicate circumstance was required to consummate either of the offences specified; cases have occurred in this state, where such proof has been dispensed with; but in others, it has been required. By one of the late acts of the British parliament, the same provision with that above proposed, is adopted." The British act referred to by the revisers, 9 G. IV., c. 31, sec. 18., provides as follows: "Whereas, upon the trials for the crimes of buggery and of rape, and of carnally abusing girls under the respective ages hereinbefore mentioned, offenders frequently escape by reason of the difficulty of the proof which has been requir ed, of the completion of those several crimes; for remedy thereof, be it enacted, that it shall not be necessary, in any of those cases, to prove the actual emission of seed in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penetration only." The old rule on the subject, which is abrogated by the British act, as well as by the revised statutes, will be found in Rex v. Harmwood, 1 East, P. C., 440; Rex v. Sheridan, 1 East, P. C., 438; Rex v. Burrows, R. & R., 519. The second objection, that the proposed section is vague and indefinite, seems, after what has leen stated, hardly to deserve a serious answer. This precise provision has been practised upon in this state for nearly twenty years; and neither the ingenuity of the bar nor the astuteness of the bench, has as yet discovered that it is either vague or obscure; and in presenting it for re-enactment in the same form, the Commissioners will allow themselves to hope that it will be found no less intelligible than before. But third, it is said that this section is not appropriate in a code of procedure merely. Here again, they will refer to the Revised Statutes as a safe precedent. This section, as well as the three which precede it, forins a portion of the chapter, entitled "Of proceedings in criminal cases." See 2 R. S. 3d ed., 790. By a reference to other provisions of the code, it will be seen that it is proposed to repeal the whole of this chapter. If, therefore, the Commissioners had omitted this and similar sections, they would have receded from the settled policy of the legislation of this state for the last twenty years, and in abolishing rules well established and founded in perfect justice, would have returned to the absurd and exploded rules of the common law. § 454. A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the offence; and the corroboration is not sufficient, if it merely show the commission of the offence, or the circumstances thereof. This section is declaratory of what juries are now invariably advised by the courts, both in England and in this state, to require, in order to warrant a conviction upon the testimony of an accomplice. It is true, that the jury may convict upon the testimony of an accomplice alone. But it is, nevertheless, always considered necessary, in order to induce the jury to credit his testimony, to give other evidence confirmatory of at least some of the leading circumstances of his story, from which the jury may be able to presume that he has told the truth as to the rest. Arch. Cr. Pl. 9th ed., 148. As to the character of this confirmation, it was at one time said, that if an accomplice were confirmed as to the particulars of the story, he need not receive confirmation as to the person charged. Rex v. Birkett, Russ. & Ry., 252. But this doctrine has been rejected in later cases; inasmuch as the confirmation as to the circumstances, proves only that the accomplice was participant in the felony, not that the particular party charged was his confederate. Rex v. Webb. 6 C. & P., 595; Rex v. Wilkes, 7 C. & P., 172; Rex v. Farler; 8 C. & P., 107; Regina v. Dyke, 8 C. & P., 261; Regina v. Birkett, S C. & P., 732. In one of the cases just cited, Rex v. Webb, 6 C. & P., 595, Williams, J., said,-that the prosecution "must show something that goes to bring the matter home to the prisoner. Proving by other witnesses, that the robbery was committed in the way described by the accomplice, is not such confirmation of him, as will entitle his evidence to credit so as to affect other persons. Indeed, I think it is really no confirmation of him at all; as every one will give give credit to a man who avows himself a principal felon, for at least knowing how the felony was committed. It has been always my opinion, that confirmation of this kind is of no use whatsoever." And in one of the cases above cited, Rex v. Wilkes, 7 C. & P., 272, Alderson, B., said "The confirmation of the accomplice as to the commission of the felony, is really no confirmation at all; because it would be a confirmation as much if the accusation were against you and me, as it would be as to those prisoners who are now upon their trial. The confirmation which I always advise juries to require, is a confirmation of the accomplice in some fact which goes to fix the guilt on the particular person charged. You may legally convict on the evidence of an accomplice only, if you can safely rely on his testimony; but I advise juries never to act on the evidence of an accomplice, unless he is confirmed as to the particular person who is charged with the offence." This practice has been recognized in this state, in The People v. Davis, 21 Wend. 313, 314, and in The People v. Costello, 1 Denio, 87, 88. The Commissioners see no reason why the practice, thus sanctioned, should not have the force of a rule, and they have therefore proposed it in the terms expressed in this section. § 455. Upon a trial for having, with intent to cheat or defraud another, designedly, by any false pretence, obtained the signature of any person to a written instrument, or having obtained from any person any money, personal property or valuable thing, no evidence can be admitted of a false pretence expressed orally, and unaccompanied by a false token or writing, unless the pretence, or some note or memorandum thereof, be in writing, either subscribed by, or in the handwriting of the defendant. But this section does not apply to a prosecution for falsely representing or personating another, and in such assumed character receiving money or property. Allusion has already been made, p. 117, to the frequency of this § 456. Upon a trial for inveigling, enticing or taking away an unmarried female of previous chaste character, under the age of twenty-five years, for the purpose of prostitution, or aiding or assisting therein, or for having, under promise of marriage, seduced and had illicit connexion with an unmarried female of previous chaste character, the defendant cannot be convicted upon the testimony of the person injured, unless she is corroborated by other evidence, tending to connect the defendant with the commission of the offence. The acts to punish abduction, Laws of 1848, p. 118, ch. 105, and seduction, Laws of 1848, p. 148, ch. 111, both provide, that a conviction shall not be had on the testimony of the female, "unsupported by other evidence." The spirit of the rule is, as the Commissioners believe, in accordance with the views expressed in the note to section 454; and they have therefore proposed that the corroboratory evidence should tend to connect the defendant with the commission of the offence. § 457. If it appear by the testimony, that the facts proved constitute an offence of a higher nature than that charged in the indictment, the court may direct the jury to be discharged, and all proceedings on the indictment to be suspended, and may order the defendant to be committed, or continued on or admitted to bail, to answer any new indictment which may be found against him for the higher offence. § 458. If an indictment for the higher offence be dismissed by the grand jury, or be not found at or before the next term, the court must again proceed to try the defendant on the original indictment. |