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THE GREEN BAG
the supreme court of Indiana upholds in all its technical strictness the rule that an indictment must state the time of the commission of the offense, so as to show that it took place prior to the finding of the indictment. An indictment found September 12, 1903, charged that defend ant on July 12, 1803, did then and there unlaw fully and feloniously kill and murder W. by shoot ing him, etc. This mistake in the allegation of the date is held to vitiate the indictment. The ruling could not well have been otherwise in view of the prior holdings to the same effect, in Murphy v. State, 106 Indiana, 96; 5 Northeastern, 767; and State v. Sammons, 95 Indiana, 22. It was contended by the state that the statute provid ing that no indictment shall be set aside or quashed for omitting to state the time at which the offense was committed in any case in which time is not the essence of the offense, nor for stating the time imperfectly, unless time is of the essence of the offense, operated to cure the error, but it is held that this rule has no applica tion where the date of the offense is alleged to be subsequent to the date of the indictment.
consent by the woman after the assault but before penetration prevents the act from being criminal, but that consent after the crime has been com pleted by penetration is not available as a defense. INSOLVENCY. (Right of state to Preference.) Md. — A case illustrating the departure in this country from the rule in England according to debts due the government, a prerogative right to priority is State v. Williams, 61 Atlantic Re porter, 297. The court determines in that case that the state has no right to preference over other creditors of an insolvent corporation where it has a simple contract claim and no steps to en force it are taken until after the appointment of a receiver for the corporation. It is pointed out that the decision that the common law was adopted by the third article of the Bill of Rights of Maryland so far as it is not inconsistent with that instrument and the nature of our political institutions, settled the point that the state had a right at common law to have its debt first paid out of the property of its debtor remaining in his hands with no lien standing in the way. It is said . however, that the right does not exist here with all the incidents to the royal prerogative right in England. We do not here have the writ of pro tection nor of the extent in chief or in aid. The priority of the state is a rule only in the distribu tion of the property of a debtor requiring the debt due to the state to be first paid where the individ ual creditor has no antecedent lien overreaching it. Even in England it is said where the right is en forced by the process in the writ of extent in chief or in aid. it is necessary, in order to make it avail able, that the proceeding be resorted to before other vested rights to the property sought, to be subjected to the claim are acquired. So it is de clared that where property has passed from the hands of the debtor, and into the custody of an officer of the court, the state is entitled to no priority.
CRIMINAL LAW. (Rape. — Consent.) Mo. — Two questions, both novel, at least in Missouri, are determined by the Supreme Court of that state in State v. Welch, 89 Southwestern Repor ter. 945. It is held in this case that a man having sexual intercourse with a woman while she is asleep is guilty of rape. This seems to be in ac cordance with the established rule wherever sim ilar facts have been presented, although the court appears not to have been able to discover many American cases supporting it. Three English cases, Regina v. Young, 14 Cox C. C. 114, Regina v. Mayer, 12 Cox C. C. 311, Rex v. Lock, 24 L. T. (N. S.) 661, are cited as supporting the doctrine, as well as the analogous cases of Commonwealth v. Burke, 105 Mass. 376. Payne v. State, 40 Tex. Crim. Rep. 202, 49 S. W. 604, is also cited as di rectly supporting the holding. Upon the other point involved in the case there seems to be more INSURANCE. (Accident Policy — Construc difference in opinion among the authorities. The tion — Death by inhaling Gas.) Ill. — In Trav evidence in the case under consideration was elers' Insurance Company v. Avers, 75 Northeast hardly sufficient to show the amount of resistance ern Reporter, 506, the Illinois Supreme Court con or attempted resistance which would be expected strues a provision in an accident policy, which is from a chaste and unwilling woman awakened .sufficiently different in its phraseology from those which formed the basis of a number of prior cases during the progress of the act of unlawful and for cible copulation, and from this arose defendant's to justify comment. Several Illinois cases, nota contention that he was not guilty because pros- bly Healey v. Mutual Accident Ass'n, 133 Ill. 556, ecutrix consented to the act upon awakening. 25 N. E. 52; Travelers' Ins. Co. v. Dunlap, 160 III. After considering the cases of Smith v. State, 12 642, 43 N. E. 765; Metropolitan Accident Ass'n v. Ohio State, 466, Regina v. Hallett, 9 Car. & P. Froiland, 161 Ill. 30, 43 N. E. 766, and Fidelity & 748, and State v. Cunningham, 100 Mo. 382, 12 S. Casualty Co. v. Waterman, 161, Ill. 632. 44 N. E. W. 376, the court concludes that the rule is that 283, have followed the case of Paul v. Travelers*
