The prosecutrix herself, at the time of the alleged offence, was but sixteen years old and the defend- ant about twenty-fivE They had attended a party at the house of a neighbor, and the prosecutrix, upon the invitation of the defendant, rode home with him on horsebacK The house of her father stands some fourteen rods from the roAd The pro- secutrix testified that when they reached the gate or bars the defendant hitched his horse, and they went towards the house together, the defendant having his arm around her waist; that after they had proceeded a short distance, the defendant pro- posed to her to go aside from the path, but she declined, saying she was going to the house; that h^.

Then pulled her a few steps aside from the path, and, with his arms around her waist, laid her upon the ground, and then had connection with he R She made no outcry, nor did she pretend that she made any resist- ancE She stated that she told him to let her go, and that she tried to get away; that after he had raised her clothes and lay upon her person, he put his mouth upon hers; that she made no outcry before he did this, but she did halloo once before she left the ground; that she was not upon the ground to exceed a minutE The prosecutrix was herself a strong, healthy girL The family, consisting of her father, two brothers, and a la;l Sixteen years old, together with several females, were m the house at the timE They were in the front part of the house where a light was burninG To constitute the crime for which the defendant was tried, there must be an unlawful and carnal knowledge of a woman by force and against her wilL There must be " the utmost reluctance and the utmost resistancE It was well said by Cowen, J, in The People v Abbott, (19 Wend 192), " a mixed case will not do The connection must be absolutely against the wilL" In this case there was no great inequality of strength between the partieS The prosecutrix, if she was the weaker party, was bound to resist to the utmoSt Nature had given her feet and hands with which she could kick and strike, teeth to bite and a voice to cry out; all these should have been put in requisition in defence of her chastity.

I can not see that any thing like this was donE The girl herself does not pretend that she made any physical resistance, and, according to her own account, the only outcry she ma-de was after the offence had been committed No marks of violence were left upon her person, and she did not disclose what had occurred until several days afte R It was proved, too, on the part of the defence, that the sister to whom she made the disclosure, had said that she did not suppose that the prosecutrix would ever have told what had happened if she had supposed the defendant could be hurt for iT Upon a state of facts like this, I can not concur with the jury in pronouncing the defendant guilty of a rapE He may, indeed, be guilty of seduction, an offence kindred in mo- rals, but by no means the same in laW The verdict is not sus- tained by the evidence, and a new trial must be granted Form of an indictment for petit larceny charged as a second offencE The statute declaring a second offence of petit larceny to be punishable in the state prison, is not applicable to a case in which the first conviction took place in another statE And where a defendant pleaded guilty to an indictment charging petit larceny as a second offence, and it appeared by the indictment, that the first offence was committed and the first conviction had in the state of Massachusetts it was held that the defendant could only be punished for simple larceny.

The prisoner was indicted for petit larceny, as a second offence, in the following form: State of New York, Columbia County, ss: The jurors of the people of the state of New York, in and for the body of the county of Columbia, upon their oath and affirmation do present, that at the court of common pleas begun and holden at Lenox within and for the county of Berkshire in the commonwealth of Massachusetts, on the first Monday of January in the year 1853, George Caesar was indicted for that at Richmond in the said county of Berkshire, on the seventh day of August then last past, in a certain building then and there called and being a dwelling house of one Mary Van Buren, there situate, then and there in the said building, one pair of pantaloons of the value of five dollars, the proper goods and chattels of one Charles M.

Van Buren, and one cloth cap of the value of fifty cents, and one gun of the value of ten dollars, of the goods and chat- tels of one George Albert Van Buren, all in the said building, then and there being found, then and there feloniously did steal, take and carry away, against the peace of the commonwealth of Massachusetts, and contrary to the form of the statute of the said commonwealth in such case made and provided, whereupon such proceedings were had in due form of law, at the said January term of the said court, that the said George Caesar was convicted of the offence above set forth whereof he was indicted as aforesaid, and the said court thereupon considered, ordered and adjudged that the said George Caesar, convicted of the offence aforesaid, be confined to hard labor in the house of correction, within the county of Berkshire aforesaid, for the term of eighteen months, and that he stand committed, accord- ing to said sentence, and the said George Caesar was so sen- tenced at the said term f the said court on the tenth day of January, 1853; the said court then and there at the times afore- said, having full power, jurisdiction and authority in the pre- miseS And the jurors aforesaid upon their oath and affirma- tion aforesaid, do further present that the said George Caesur, late of the town of Canaan in the county of Columbia and state of New York, being the same George Caesar who was convicted and sentenced as aforesaid of petit larceny, after the said con- viction and sentence and after having been discharged from the said conviction and sentence, to wit, on the 27th clay of Decem- ber, 1854, at the town of Canaan, in the county of Columbia and state of New York, with force and arms three cotton shirts of the value of fifty cents each, one skirt of the value of one dollar and fifty cents, one table cloth of the value of fifty cents, six pillow cases of the value of twenty-five cents, the goods, chat- tels and property of Alonzo Lockwood, then and there being found, did then and there feloniously steal, take end carry away against the form of the statute in such case made and provided, and against the peace of the people of the state of New York, and their dignity.