the felony charged in such indictment, or of an attempt to commit the same, then and in every such case the jury may acquit the defendant of such felony, and find him guilty of such offence as aforesaid, or of an indecent assault, and thereupon such defendant shall be liable to be punished in the same manner as if he had been convicted upon an indictment for such offence as aforesaid, or for the misdemeanor of indecent assault. (f)

Upon an indictment under the repealed statute, the first count of which charged the prisoner with carnally knowing and abusing a girl above ten and under twelve years of age; and the second count with an assault with intent carnally to know and abuse, and the third count with a common assault: the jury negatived the first count, as there was no proof of penetration: it was contended for the prisoner, that supposing the fact to have been done by the consent of the prosecutrix, no conviction could take place on the second and third counts. The jury found that the prosecutrix had consented, and Alderson, B., directed a verdict of guilty, on the ground that the prosecutrix was by law incapable of giving her consent to what would be a misdemeanor by statute; but, upon a case reserved, all the judges thought that the proper charge was of a misdemeanor in attempting to commit a statutable offence, and that the conviction. was wrong. (h) The ground on which the judges went in the preceding case was, that although a child between ten and twelve cannot by law consent to have connection, so as to make that connection no offence, yet, where the essence of the offence charged is an assault (and there can be in law no assault, unless it be against consent), this attempt, though a criminal offence, is not an assault; and the indictment must be for an attempt to commit a felony, if the child is under ten years old, and for an attempt to commit a misdemeanor, if the child is between the ages of ten and twelve; for it is perfectly clear that every attempt (not every intention, but every attempt) to commit a misdemeanor is a misdemeanor.' (i)

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The indictment contained one count, and charged that the prisoner in and upon a girl between the ages of ten and twelve unlawfully did make an assault, and her did then unlawfully and carnally know and abuse against the form,' &c. The offence of carnally knowing and abusing was disproved, but there was evidence of an indecent assault, which was left to the jury, who found the prisoner

(f) The unsworn evidence of a girl under thirteen (under the provisions of sec. 4, ante, p. 238) will be allowed to support a conviction for indecent assault if the indictment is under sec. 4. R. v. Wealand, 20 Q. B. D. 827. It was held, however, not to be admissible if the prisoner was directly indicted for indecent assault. R. v. Paul, 25 Q. B. D. 202. To remedy this anomalous state of the law it is expressly made admissible on this and other charges by sec. 15, of 57 & 58 Vict. c. 41. See post. It is doubtful whether this section would operate to make valid a verdict of common assault. The old form of indictment for rape commenced 'did on the sd A. B. make an assault' and under such an indictment it was held that a conviction for common assault was good.

See R. v. Guthrie, post, p. 243. The ground of that decision seems to be that there was a charge of assault. The assault need not however be expressly charged if it is implied in the offence. See R. v. Taylor, L. R. 1 C. C. R. 194, but where there is consent there can be no assault.

(h) R. v. Martin, 2 Moo. C. C. R. 123. S. C. 9 C. & P. 213.

(i) Per Patteson, J., R. v. Martin, 9 C. & P. 215. R. v. Meredith, 8 C. & P. 589, Lord Abinger, C. B. R. v. Reed, 1 Den. C. C. 377. Nor upon an indictment for an indecent assault, R. v. Johnson, 10 Cox, 114, L. & C. 632, and see a remark by Bovill, C. J., in R. v. Guthrie, infra, where he says that if there is consent there cannot be an assault.

guilty of a common assault. Held, (upon a case reserved, the question for the opinion of the Court being whether the prisoner could be properly convicted on this indictment of a common assault) that the indictment charged an assault as a distinct and separable offence, and that the conviction was good. (j)

Where on a trial for carnally knowing a child under ten years of age, the child was too young to be examined, but a surgeon proved marks of violence which might have been inflicted by any foreign substance, and it was submitted that the prisoner might be convicted of an assault, as the consent of the child could not be presumed, by reason of its tender age: Patteson, J., said: That is a mistake of the law. My experience has shewn me that children of very tender age may have vicious propensities. A child under ten years of age cannot give consent to any criminal intercourse, so as to deprive that intercourse of criminality; but she can give such consent as to render the attempt no assault. We know that a child can consent to that which, without such consent, would constitute an assault.'(k)

Upon an indictment for attempting to abuse a child under the age of ten, containing a count for a common assault, no proof was given of the child being under ten years of age, but it appeared that the prisoner made an attempt on her, without any violence on his part, or actual resistance on hers, and it was contended that as she offered no resistance, it must be taken that she consented, and therefore the prisoner must be acquitted. Coleridge, J.: There is a difference between consent and submission; every consent involves a submission; but it by no means follows that a mere submission involves consent. It would be too much to say, that an adult submitting quietly to an outrage of this description, was not consenting; on the other hand, the mere submission of a child, when in the power of a strong man, and most probably acted upon by fear, can by no means be taken to be such a consent as will justify the prisoner in point of law. You will therefore say whether the submission of the prosecutrix was voluntary on her part, or the result of fear under the circumstances in which she was placed. If you are of the latter opinion, you will find the prisoner guilty on the second count of the indictment.' (7)

The prisoner was indicted under the repealed enactment, 24 & 25 Vict. c. 100, s. 50, for unlawfully attempting to have carnal knowledge of a girl under the age of ten years. The evidence was, that the prisoner attempted to have carnal knowledge of the girl, but that she consented to the attempt: held, that the fact that the girl consented to the attempt was immaterial, and that the conviction of the prisoner was right. (m)

It will be noticed that by 43 & 49 Vict. c. 69, s. 5, whether the

(j) R. v Guthrie, 39 L. J. M. C. 95; L. R. 1 C. C. R. 241. The prisoner was indicted under the repealed enactment, 24 & 25 Vict. c. 100, s. 51, which made the offence a misdemeanor. See R. v. Catherall, 13 Cox, C. C. 109.

(k) R. v. Cockburn, 3 Cox, C. C. 543. See R. v. Roadly, 14 Cox, C. C. 463.

(1) R. v. Day, 9 C. & P. 722, Coleridge, J.

R. v. Lock, 42 L. J. M. C. 5; L. R. 2 C. C. R. 10. R. v. Woodhouse, 12 Cox, C. C. 443, Lush, J.

(m) R. v. Beale, 35 L. J. M. C. 60; L. R. 1 C. C. R. 10; et per Pollock, C. B. The fact that the girl was a consenting party is quite immaterial. The consent of the girl is immaterial in an indictment charging the commission of the felony of having carnal

girl consented or not to the offence mentioned in that section being committed is immaterial. See ante, p. 239.

We have seen that where a prisoner is indicted for a misdemeanor, and the evidence proves that he was guilty of a felony, he is not on that account to be acquitted. (n) But where upon an indictment under one of the repealed enactments for having carnal knowledge of a girl above the age of ten years and under the age of twelve years, it appeared that in fact the girl was under the age of ten years; Maule, J., held that this was not a case falling within the 14 & 15 Vict. c. 100, s. 12, as that section only applied to cases of merger; e.g. the case of false pretences, where the facts proved that the false pretences had been effected by a forgery. In such a case under this section, a prisoner might, nevertheless, be convicted. But that section only applied to cases where the indictment was proved by facts amounting to a felony. The words in this indictment being above the age of ten years and under the age of twelve years,' were material, constituting the misdemeanor charged, and they had not been proved. (0)

It had been held before that enactment, that where a prisoner was indicted under one of the repealed enactments for carnally knowing a girl between ten and twelve years of age, and it was proved that he had committed a rape upon her, he was not thereby entitled to be acquitted. (p)

Upon an indictment under the 24 & 25 Vict. c. 100, s. 51 (now repealed), for having carnal knowledge of a girl between ten and twelve years of age, it appeared that in fact she was under ten years of age; and Maule, J., held that the indictment could not be amended under the 14 & 15 Vict. c. 100, s. 1, as the words were matter of substance. (q)

On an indictment for an assault with intent to abuse and carnally know, the defendant may be found guilty of the intent to abuse only. (r)

Where an indictment in the first count charged the prisoner with having assaulted E. R., an infant above the age of ten and under the age of twelve years,' with intent to carnally know and abuse her, and in the second count charged that the prisoner unlawfully did put and place the private parts of him against the private parts of the said E. R., and did thereby then and there unlawfully attempt. and endeavour to carnally know and abuse the said E. R.; it was held that the second count was bad, because it did not aver that the said E. R., was between the ages of ten and twelve, and that the word said' did not help it, as it did not incorporate the description of E. R. contained in the first count; but that if the second count had contained the words, the said E. R. then and there being above the age of ten years, and under the age of twelve years,' it would have been sufficient. (8)

knowledge; and it must follow that consent

(2) R. v. Shott, 3 C. & K. 206. The 14

is immaterial where the offence charged is & 15 Vict. c. 100, s. 1, will be found, ante, the attempt only. See R. r. Neale, 1 Den. P. 54. C. C. 36; R. v. Ryland, 11 Cox, 101; R v. Woodhouse, 12 Cox, C. C. 443.

(r) R. v. Dawson, 3 Stark. N. P. C. 62. (s) R. v. Martin, 9 C. & P. 215, Patteson, J. See R. v. Cheere, 4 B. & C. 902. 7 D. & R. 461, that the word said' does not incorporate a previous description. See R. v. Waters, 1 Den. C. C. 356.

By the 4 & 5 Vict. c. 56, s. 6, the crime of carnally knowing and abusing any girl under the age of ten years shall not be tried or triable before any justices of the peace at any general or quarter sessions of the peace.'

By the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69): sec. 12, Where on the trial of any offence under this Act it is proved to the satisfaction of the Court that the seduction or prostitution of a girl under the age of sixteen has been caused, encouraged, or favoured by her father, mother, guardian, master, or mistress, it shall be in the power of the Court to divest such father, mother, guardian, master, or mistress of all authority over her, and to appoint any person or persons willing to take charge of such girl to be her guardian until she has attained the age of twenty-one, or any age below this as the Court may direct, and the High Court shall have the power from time to time to rescind or vary such order by the appointment of any other person or persons as such guardian, or in any other respect.'

By sec. 16, This Act shall not exempt any person from any proceeding for an offence which is punishable at common law, or under any Act of Parliament other than this Act, so that a person be not punished twice for the same offence.'

By sec. 17, Every misdemeanor under this Act shall, in England and Ireland, be deemed to be an offence within, and subject to, the provisions of the Act of the session of the twenty-second and twentythird years of the reign of Her present Majesty, chapter seventeen, intituled "An Act to prevent vexatious indictments for certain misdemeanors," and any Act amending the same, and no indictment under the provisions of this Act shall in England be tried by any Court of quarter sessions.'

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By sec. 18, The Court before which any misdemeanor indictable under this Act, or any case of indecent assault, shall be prosecuted or tried may allow the costs of the prosecution, in the same manner as in cases of felony, and may in like manner, on conviction, order payment of such costs by the person convicted; and every order for the allowance or payment of such costs shall be made out, and the sum of money mentioned therein paid and repaid upon the same terms and in the same manner in all respects as in cases of felony.'

By sec. 20, Every person charged with an offence under this Act or under section forty-eight and sections fifty-two to fifty-five, both inclusive, of the Act of the session of the twenty-fourth and twentyfifth years of the reign of Her present Majesty, chapter one hundred, or any of such sections, and the husband or wife of the person so charged, shall be competent but not compellable witnesses on every hearing at every stage of such charge, except an inquiry before a grand jury.' (t)

(4) The effect of this section together with sec. 52 of 24 & 25 Vict. c. 100, is to make a person charged with indecent assault an admissible witness on his own behalf. The prisoner was charged on an indictment containing two counts, the first for an indecent assault, the second for a common assault. He gave evidence in his defence, and was convicted of common assault. The Court (Lord Coleridge, C. J., Manisty, Hawkins,

Mathew, and A. L. Smith, JJ.) affirmed the conviction, although, if the charge had been only of common assault, the prisoner's evidence could not have been given. R. v. Owen, 20 Q. B. D. 829. If, however, the prisoner is charged with any offence involv ing bodily injury to a child, the evidence of the prisoner and his wife are admissible, 57 & 58 Vict. c. 41, s. 12, and Sched.

The procedure in all cases of offences against children is largely modified by the Prevention of Cruelty to Children Act, 1894 (57 & 58 Vict. c. 41), see post.

SEC. III.

Of procuring the Defilement of Girls under Age.

By the Criminal Law Amendment Act, 1885 (48 & 49 Vict. c. 69), sec. 2, Any person who, (1.) Procures or attempts to procure any girl or woman under twenty-one years of age, not being a common prostitute, or of known immoral character, to have unlawful carnal connection, either within or without the Queen's dominions, with any other person or persons; or (2.) Procures or attempts to procure any woman or girl to become, either within or without the Queen's dominions, a common prostitute; or (3.) Procures or attempts to procure any woman or girl to leave the United Kingdom, with intent that she may become an inmate of a brothel elsewhere; or (4.) Procures or attempts to procure any woman or girl to leave her usual place of abode in the United Kingdom (such place not being a brothel), with intent that she may, for the purposes of prostitution, become an inmate of a brothel within or without the Queen's dominions, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.

'Provided that no person shall be convicted of any offence under this section upon the evidence of one witness, unless such witness be corroborated in some material particular by evidence implicating the accused,'

By sec. 3, Any person who, (1.) By threats or intimidation procures or attempts to procure any woman or girl to have any unlawful carnal connection, either within or without the Queen's dominions; or (2.) By false pretences or false representations procures any woman or girl, not being a common prostitute or of known immoral character, to have any unlawful carnal connection, either within or without the Queen's dominions; or (3.) Applies, administers to, or causes to be taken by any woman or girl any drug, matter, or thing, with intent to stupefy or overpower so as thereby to enable any person to have unlawful carnal connection with such woman or girl, shall be guilty of a misdemeanor, and being convicted thereof shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.

'Provided that no person shall be convicted of an offence under this section upon the evidence of one witness only, unless such witness be corroborated in some material particular by evidence implicating the accused.'

By sec. 8, 'Any person who detains any woman or girl against her will, (1.) In or upon any premises with intent that she may be unlawfully and carnally known by any man, whether any particular man, or generally, or (2.) In any brothel, shall be guilty of a misde