criminal prosecution for such seduction. This also seems to be the approved rule even in the absence of such a statute where the intercourse is obtained through a promise of marriage and the promise is kept and performed, even though the seducer may have performed the marriage promise to avoid a criminal prosecution." But this doctrine is denied in a recent case in Kansas, and it is there held that the subsequent marriage of the parties is no defense.98 Under a statute of Arkansas providing that, if any man against whom a prosecution has been begun for seduction shall marry the female alleged to have been seduced, the prosecution shall not be terminated, but shall be suspended, provided that if, at any time thereafter, the accused shall desert such female, the prosecution shall be continued, it is held that a prosecution which has been suspended by marriage cannot be renewed upon a separation by mutual consent unless the wife has offered to resume the marital relation and her offer has been refused, but that the prosecution can be revived if her consent to the separation was caused by wrongful conduct on the part of the husband with the intention of forcing her to agree to the separation."

"State v. Otis, 135 Ind. 267, 34 N. E. 954, 21 L. R. A. 733; People v. Gould, 70 Mich. 240, 38 N. W. 232, 14 Am. St. 493; Commonwealth v. Eichar, 4 Clark (Pa.) 551; 2 Wharton Cr. Law, § 1760; 2 Archbold Cr. Pl. Ev. 1825; 5 Lawson Def. Crimes, 780.

09

Lewis, In re, 67 Kans. 562, 73 Pac. 77, 63 L. R. A. 281; see also, State v. Bierce, 27 Conn. 319. That she married some person other than her seducer is not a bar. Dowling v. Crapo, 65 Ind. 209.

"Burnett v. State, (Ark.) 81 S. W. 382.

§ 3154. Meaning of term.-Treason is a breach of allegiance to the government, or the offense of attempting to overthrow the government to which the offender owes allegiance; or of betraying the state into the hands of a foreign power.1 The constitution of the United States provides that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort, and that no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or upon his confession in open court. Most of the state constitutions also contain a similar provision as to treason against the state. And it is declared that no other acts can be declared to constitute the offense, against the United States. Congress can neither extend nor restrain nor define the crime. So, it is said that, being a breach of allegiance, it can be committed by him only who owes allegiance, either perpetual or temporary. What constitutes levying war against the government is a question which has been the subject of much discussion whenever an indictment has been tried under this article of the constitution. The levying of war is not necessarily to be judged alone by the number or array of troops, but there must be a conspiracy to resist by force and an actual resistance by force

1 See, Respublica v. Chapman, 1 Dall. (U. S.) 53; Cranburne's Trial, 13 How. St. Tr. 221, 227; Vaughan's Trial, 13 How. St. Tr. 485, 526.

2 Const. U. S., Art. 3, § 17.

3 United States v. Greathouse, 4 Sawy. (U. S.) 457, 26 Fed. Cas. No. 15254.

39.

4

Young v. United States, 97 U. S.

of arms, or intimidation by numbers. The conspiracy and insurrection connected with it must be to effect something of a public nature to overthrow the government, or to nullify some law of the United States and totally to hinder its execution or compel its repeal. A conspiracy to resist by force the execution of a law in particular instances only, a conspiracy for a personal or private, as distinguished from a public and national purpose is not treason however great the violence or force or numbers of the conspirators may be. So, where a number of citizens in a free state collected together to prevent the enforcement of the fugitive slave law and the return of the escaped slave to his master in a slave state, the question whether such individuals were levying war against the United States was submitted to the jury, who found for the defendants. In most of the several states, treason against the state is defined in the same words, or in language to the same effect; and the same amount of evidence is made necessary to a conviction as by the federal laws, but in a few of the states both the crime and the requisite proof are described with other qualifications.®

9

8

§ 3155. Burden of proof.-The burden of proof is on the prosecution to prove the crime in its entirety. And since a treasonable intention and an overt act are requisite components of treason, the burden of proof to establish these is on the prosecution. Thus, the burden of proof is on 'the prosecution to establish that the accused owed allegiance and fidelity to the state against which the treason was committed, and that an overt act was committed by him.10 In other words, it must be proved to the satisfaction of the jury that the crime. in its entirety was committed by the prisoner.11

§ 3156. Two witnesses essential.-In order to convict of treason there must be at least two witnesses, and all other evidence, it has been said, must be rejected unless the overt act charged is proved by two

5 Words and Phrases, Vol. 8; see also, United States v. Hanway, 2 Wall. Jr. (U. S.) 139, 26 Fed. Cas. No. 15299.

6 See the State Constitutions. United States v. Fries, 3 Dall. (U. S.) 515, 9 Fed. Cas. No. 5126. 'United States v. Hanway, 2 Wall. Jr. (U. S.) 139, 169.

United States v. Mitchell, 2 Dall. (U. S.) 348.

"United States v. Burr, 4 Cranch (U. S.) 470, 25 Fed. Cas. No. 14693.

10 Lisbon v. Lyman, 49 N. H. 553; Reg. v. Frost, 9 Car. & P. 129, 38 E. C. L. 87.

11 United States v. Fries, 3 Dall. (U. S.) 515, 9 Fed. Cas. No. 5126; see also, Reg. v. Frost, 9 Car. & P. 129, 38 E. C. L. 87; United States v. Hanway, 2 Wall. Jr. (U. S.) 139, 169.

witnesses.12 This rule, it seems did not originally obtain at common law, but was introduced by statute in the sixteenth century,13 and reenacted in later statutes. In case the act of treason is that of levying war it is held, however, that one witness to two several component parts of the same act is sufficient, as such act is made up of many separate parts.1 Our constitution expressly provides that no person shall be convicted of treason unless on the testimony of two witnesses to the same overt act of treason or on confession in open court.15 And the statutes require the testimony of at least two witnesses in order to convict one of treason.16 But two witnesses are not required to show the intention; the constitution only requires two witnesses to the same overt act, so the treasonable design or intention may be established in other ways.17 Thus the treasonable intention may be established by the declaration of a party prior to or during the commission of a treasonable act.18 So, also, by a single fact or act.19 And also by the conduct of the accused, even though in other places.20 Where it is shown by the testimony of several witnesses that the accused was present and participated in a treasonable conspiracy it has been held that proof by two or more witnesses that he marched as a volunteer with arms and in military array, with a party which actually used force to prevent the execution of an act of congress, is sufficient with

12 United States v. Burr, 4 Cranch (U. S.) 470, 493, 25 Fed. Cas. No. 14693.

13 See, Bishop Fisher's Trial, 1 How. St. Tr. 395; Foster Crown L. 233; State Trials for Treason (Willis-Bund) XXXIX; Best Ev., §§ 616-619.

14 United States V. Mitchell, 2 Dall. (U. S.) 348.

15 Const. United States, Art. III, § 3; United States v. Burr, 4 Cranch (U. S.) 25 Fed. Cas. No. 14693; United States v. Greiner, 4 Phila. (Pa.) 396, 26 Fed. Cas. No. 15262; United States v. Fries, 3 Dall. (U. S.) 515, 9 Fed. Cas. No. 5126; United States v. Lee, 2 Cranch (U. S.) 104; Respublica v. McCarty, 2 Dall. (U. S.) 86.

16 United States v. Fries, 3 Dall. (U. S.) 515, 9 Fed. Cas. No. 5126.

17 United States v. Fries, 3 Dall. (U. S.) 515, 9 Fed. Cas. No. 5126; United States v. Lee, 2 Cranch (U. S.) 104.

18 Charge to Grand Jury, 5 Blachf. (U. S.) 549, 30 Fed. Cas. No. 18271; United States v. Fries, 3 Dall. (U. S.) 515, 9 Fed. Cas. No. 5126.

19 United States v. Fries, 3 Dall. (U. S.) 515, 9 Fed. Cas. No. 5126; Reg. v. Davitt, 11 Cox Cr. Cas. 676; Rex v. Gordon, 2 Dougl. 590.

20 United States v. Fries, 3 Dall. (U. S.) 515, 9 Fed. Cas. No. 5126; United States v. Burr, 4 Cranch (U. S.) 470, 25 Fed. Cas. No. 14693. It is said, however, that the treasonable intention must be clearly and unequivocally shown. State v. McDonald, 4 Port. (Ala.) 449.

out proof by two witnesses that he was actually present when the acts of violence were done.21

§ 3157. Confession of treason-Corroboration.-One writer thus states the rule as to confession of treason: "Because the statutory requirement under which the testimony of two witnesses to an overt act was necessary to convict one of the crime of treason, it was at one time doubted whether an extra judicial confession was admissible against one on trial for the commission of that crime. It is now the law that while no one can be convicted of treason upon his confession not made in open court, that is, by a plea of guilty to the indictment, his extra judicial confession may be received against, and the confession itself must, to be admissible, be proved by two witnesses."22 But if an overt act has been proved, where the indictment is laid, the defendant's confession may be given in evidence to corroborate that proof, 23 and it has been held that when an overt act of treason has been proved by two witnesses the defendant's confession of another species of treason is admissible as corroborating the same. But until the overt act is proved by two witnesses or until there is confession made in open court, evidence in corroboration is not admissible.25

§ 3158. Levying war. The allegation of levying war by an armed assembly may be established by testimony showing such an assemblage for any warlike object in itself amounting to an actual or constructive levying of war, such as, to prevent the execution of a public law.26 It is an act of levying war for such an assemblage to compel the repeal of a law or to alter the law or to expel all the citizens or subjects of a particular country or nation.27 In case the charge is of levying war, it is not necessary to prove that the accused was actually present at the perpetration of the overt act charged; it is sufficient to prove that he was constructively present on that occasion.28 "But if the personal

" United States v. Mitchell, 2 Dall. United States v. Lee, 2 Cranch (U. (U. S.) 348. S.) 104.

21 Underhill Cr. Ev., § 142; 1 Burr's Trial 196.

Respublica v. Roberts, 1 Dall. (U. S.) 39; Respublica v. McCarty, 2 Dall. (U. S.) 86, 89.

24

Respublica v. McCarty, 2 Dall. (U. S.) 86, 1 L. Ed. 300.

United States v. Burr, 4 Cranch (U. S.) 470, 25 Fed. Cas. No. 14693; VOL. 4 ELLIOTT Ev.-31

26 Fries' Trial, 196.

27 Rex v. Gordon, 2 Doug. 590; United States v. Burr, 4 Cranch (U. S.) 470, 25 Fed. Cas. No. 14693; United States v. Greathouse, 2 Abb. (U. S.) 364; United States v. Hoxie, 1 Paine (U. S.) 265.

United States v. Burr, 4 Cranch (U. S.) 470, 25 Fed. Cas. No. 14693.