without her consent, neither is guilty-that what is rape cannot be incest. The doctrine has been adopted by a number of states. But it is believed that the majority of the courts have repudiated the doctrine, and consider the lack of consent as material only as it bears on the credit due the testimony of the other party; for it is a rule of law that a criminal should not be convicted on the unsupported confession and testimony of an accomplice. It is no defense that either party is astard or descended from one. It is the blood relationship, not the legitimate relation, of the parties that is regarded.

§ 170. Sodomy or buggery is the unnatural carnal copulation of persons or of person with beast. The latter offense is also known as bestiality. It is doubtful whether the offense is felony or misdemeanor in the absence of statute, but it seems clear that it was a crime at the common law. If committed between persons both parties are guilty.

§ 171. Seduction is the act of enticing an unmarried female of previous chaste character to illicit carnal intercourse by persuasion and promises. It is doubtful whether it was criminal before the statute of 4 and 5 Philip and Mary c. 8. The offense differs considerably under the statutes of the different states. The usual promise, if not the only sufficient one, is a promise of marriage; and it has been held that if the promise was only conditional, to marry if pregnancy should follow the intercourse, such a promise is insufficient to found a charge of seduction on. It has been said that one can be seduced but once; but there is authority to the contrary. Al

though a woman may have previously left the path of virtue on account of the seductive arts of some other person, she may have repented of the act and reformed; and yet it is clear that the evidence of reformation which would justify conviction for a subsequent act must be clear and convincing. It has also been held that the fact that indecent liberties were taken with a girl while she was of an age insufficient to enable her to comprehend the nature of the act or consent to it, does not render her liable to seduction with impunity after she attains her age and is leading a virtuous life. If a married man seduces a girl on promise of marriage, she not knowing that he has a wife, the promise is of course illegal, but this fact does not excuse him. If, however, she knows that he has a wife living, and his promise is to marry as soon as his wife shall die, or to get a divorce from her and marry, such a promise is meretricious and no foundation for a charge of seduction.

§ 172. Fornication is illicit sexual intercourse without any other of the aggravating circumstances included in the crimes above discussed. If not indulged in a public manner so as to amount to public indecency it was not criminal at the common law. Statutes on the subject will be found in most if not in all of the states making such acts misdemeanors.

§ 173. Indecency. Indecent public exposure of the person is a common law offense; but it has been held that the exposure must be to more than one person, and of course it must have been intentional. The keeping of a bawdy-house is a common law nuisance, and open and

notorious lewdness are punishable criminally without statute. The use of obscene and profane language, within the hearing of several members of the public, or in streets or other public places, is an indictable common law offense; but the indictment in such cases must allege, and the proof must show that the act was public and within the hearing of the citizens present. Such acts naturally tend to degrade the moral standard, and outrage the public sense of decency, and for this reason are punished. Public drunkenness and the frequenting of houses of prostitution are also criminal by statute.

§ 174. Nuisance. Nuisances are of two kinds, private, which injure only individuals and are mere civil wrongs; and public nuisances, which are criminal. A public or common nuisance is any act or neglect of duty which results in an injury or annoyance to the whole community. The result of the act is called a nuisance. The distinction between a private and a public nuisance is not always easy to draw, but the extremes are easily distinguished. An unnecessary noise which discommodes only one family would at most be a private nuisance, so of an offensive smell; but a stinking pig-sty near a highway so as to offend the general public in passing and repassing would be a public nuisance. It is not necessary to a conviction. of this offense that the defendant intended any injury to the public or anyone. One who conducts a stone quarry near a navigable stream, and does not prevent his workmen allowing refuse to fall into the river so as to obstruct navigation is liable to criminal prosecution, and it is no defense that he had repeatedly commanded his

men that they must not permit obstructions to fall into the river. If the thing amounts to a nuisance it is no defense that it has been done from time immemorial, for right to maintain a nuisance cannot be acquired by prescription. It is no defense that it is a necessary incident of a business properly conducted and beneficial to the public. If the defendant cannot conduct the business without committing a nuisance he must leave the business to others more fortunately situated. A paint factory was established in the suburbs of the city of Detroit at a point remote from any house. In time the city grew to the vicinity of the factory. The boiling and preparing of the oils produced odors offensive to the smell and injurious to health. The fact that the business was conducted in a careful manner, producing no more inconvenience than was necessary to the business, that the city had grown about the plant after it was established there, and that the work was beneficial and necessary to the public, were held to be no excuse for the continuance of the business after it became a nuisance (4).

(4) People v. Detroit White Lead Wks., 82 Mich. 471.

CHAPTER XI.

CRIMES AGAINST PUBLIC JUSTICE AND AUTHORITY.

§ 175. In general. Any act which tends to impair the administration of public affairs is a direct and serious injury to the whole public and several offenses of this kind deserve special notice, more particularly the following: obstructing an officer, compounding a crime, misprison of felony, escape, prison breach, rescue, bribery, perjury, embracery, and contempt.

§ 176. Obstructing an officer. One who by force opposes an officer in the performance of an official duty is guilty of an indictable offense. It has been argued that if the officer is acting by color of his office the citizen must submit to the injury he may suffer thereby if any, and seek his remedy by action in the courts for damages. But many times the remedy in court is practically inadequate and amounts to nothing, and to say that the injury must be endured and such redress taken as may be obtained in court, would in many cases amount to a practical denial of the right. Therefore it was held that one who forcibly drove a sheriff off of his premises, when he was about to levy on and take away under attachment property exempt from seizure on any process, was not liable criminally for it; because the horses and tools that were about to be taken were the defendant's