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tion cannot be proved in the case of a child, or of bestiality, and that penetration may be evidence of emission. (9) Subsequently to this case, Willes, C. J. presiding at a trial for this offence, adopted the doctrine of the proof of emission being necessary : (r) but that great crown lawyer, Mr. J. Foster, held otherwise upon a similar occasion,(s) as did Clive, J. upon another trial a few years afterwards.(t) The matter was further considered, in a case where the prosecutrix could not prove any emission; and Bathurst, J. directed the jury, that if they believed that the prisoner had his will of her, and did not leave her till he chose it himself, they should find him guilty, though an emission were not proved; and after the jury had returned a verdict of guilty, he said, that it was always his opinion, that it was not necessary to prove emission; and Smythe, B., who was present at the trial, was clearly of the same opinion. (u) And in a case which has been before mentioned, where it was agreed that the least degree of penetration was sufficient, it seems that the jury were directed by Ashhurst, J. that if the penetration were proved, the rape was complete in law.(w) The weight of the authorities, therefore, after these cases had been decided, was supposed to be much against the necessity of the proof of emission as well as penetration.(x)
But a more recent case appears to have introduced the contrary doctrine. The case, which was reserved for the opinion of the Judges, stated, that the fact of penetration was positively sworn to; but that there was no direct evidence of emission. From interruption, it appeared probable that emission was not effected; and the jury, under the direction of the learned Judge who tried the prisoner, found a verdict of guilty, but said, that they did not find the emission. Upon this case three of the Judges (y) held, that the offence was complete by penetration only; but seven of them(:) held both emission and penetration to be necessary: they thought, however, that the fact should be left to the jury. One judge was absent; (a) and Lord Mansfield only stated, that a great majority seemed to be of upinion that both were necessary. It is said that the majority, in this case, proceeded upon the ground that carnal knowledge (which they considered could not exist without emission) was necessary to the consummation of the offence: but that this definition was denied by the others, who observed, that carnal knowledge was not necessary to be laid in the indictment, but only that the defendant ravished the party.(b) In a later case from the privy council, upon proceedings under a court martial against a seaman for sodomy, it was stated that there was complete penetration and emission : but the emission was out of the body of the person on whom the sodomy was committed ; and, upon full consideration, the Judges were of opinion that injectio seminis was essential; and they stated as their opinion that, upon the authority of what a series of later years had been understood to be the law, and had been acted upon as such, the offence was not complete, and that the prisoner should not have been convicted.(x)
(9) Rex v. Duffin, O. B. 1721, or (u) Rex v. Sheridan, 0. B. 8 Geo. 3. 1722, Baron Price's MS. 1 East. P. C. 2 MS. Sum. 333. 1 East. P.C. c. 10. c. 10. s. 3. p. 437, 438. The Judges s. 3. p. 438. thus differing in opinion, it was pro- (W) Rex v. Russen, ante, note (o). posed to discharge the special verdict, (x) i East. P. C. c. 10. s. 3. p. 439. and indict the party for a misde- (y) Lord Loughborough, Buller, J.
(who tried the prisoner) and Heath, J. (r) Rex v. Cave, O. B. 1747, Serj. (2) Skynner, id. C. B., Gould, WilForster's MS. i East. P. C. c. 10. 8. 3. les, Ashhurst, and Nares, Justices, and
Eyre and Hotham, Barons. (s) I East. P. C. ibid.
(a) Perryp, B. (1) Rex v. Bloomfield, Thetford, (6) Rex v. Hill, 1781. MS. Gould. 1758, Serj. Forster's Ms. i East. P.C. and Buller, Justices. I East. P. C. ibid.
c. 10. . 3. p. 439, 440.
Upon the authority of these cases it seems, therefore, that at the present time, the offence would not be considered as complete without some proof of the emissio seminis. But this doctrine is not free from considerable difficulty; and appears to be fairly open to the observation, that where the violence has proceeded to the extent of an actual penetration of the unhappy sufferer's body, an injury of the highest kind has been effected. The quick sense of honour, the pride of virtue, which nature, in order to render the sex amiable, has implanted in the female heart, is violated beyond redemption; and the injurious consequences to society are in every respect complete.(c)
Supposing, however, that emission is necessary, it seems that penetration is prima facie evidence of it, unless the contrary appear probable from the circumstances. (d) Thus, where a woman swore that the defendant had his will with her, and had remained on her body as long as he pleased, but could not speak as to emission, Buller, J. said, that it was sufficient evidence of a rape to be left to the jury.(e) And he mentioned a case, which he recollected, of an indictment for a rape, where the woman had sworn that she did not perceive anything come from the man, and that, though she had many children, she never was in her life sensible of emission from a man ; and that this was ruled not to invalidate the evidence which she gave of a rape having been committed upon her. In a case where the party ravished had died before the trial, her deposition, corroborated by other evidence of actual force and penetration, was held sufficient to warrant a conviction, though there did not appear to be any direct evidence of emission. It was left to the jury to determine whether the crime had been completed by penetration and emission; and they were directed that they might collect the fact of emission from the evidence, though the unfortunate girl was dead, and could not therefore give any further account of the transaction, than that which was contained in her deposition before the magistrate. (f)
If something occurs to create an alarm to the party while he is (x) Rex v. Parker, Hil. T. 1812. (e) Rex v. Harmwood, Winchester, MS. Bayley, J.
Spr. Ass. 1787. 1 East. P. C. c. 10. (c) i East. P. C. c. 10. s. 3. p. 436, s. 3. p. 440. The indictment was for 437. Fost. 274.
an assault with intent to ravish; and (d) The majority of the judges in the learned judge ordered the defendHill's case, anle, note (b), thought the ant to be acquitted of that charge, question of emission was a fact for the upon the evidence appearing to jury; and see the opinion of Bathurst, amount to proof of an actual rape. J. ante; 559, and see i East. P. C. (f) Rex v. Flemming and Windc. 10. s. 3. p. 440.
ham, 2 Leach. 854.
perpetrating the offence, it may be for the jury to say whether he left the body re infecta because of the alarm, or whether he left it because his purpose was accomplished. The prisoner had been in the body of the woman two or three minutes; and then, two men coming in sight, she struggled violently, and he withdrew from her body, but jumped with his knees upon her breast, and held her by the mouth and throat so that she could not speak or stir: but afterwards, upon her seizing an opportunity and calling out, the men came up and secured the prisoner. The woman spoke of him as having seen the men before he withdrew : the men thought he did not see them at that time. Holroyd, J. left the question to the jury, whether the prisoner had completed the crime before he withdrew, and withdrew on that account; and the jury found that he had. And the Judges held that it was a question for the jury, and rightly left to them.(z)
It appears always to have been admitted, that emissio seminis of itself makes neither rape nor sodomy; but it is spoken of as prima facie evidence of penetration.(g)
As the absence of previous consent is a material ingredient in of the indictthe offence of rape, it must be averred in the indictment; where ment. it is usually expressed by stating that the fact was done “ against the will” of the party.(h) It is essential to aver, that the offender did feloniously "ravish” the party; and the omission of the word ravished will not be supplied by au averment that the offender “ did carnally know,” &c.(i) It has been considered, that the words “did carnally know" are not essential, on the ground that rapere signifies legally as much as carnaliter cognoscere :(k) but they are at any rate appropriate in describing the nature of the crime, and appear to be generally used.(1) The omission of them would not, therefore, be prudent.(m) The indictment usually concludes “ against the form of the statute;" but as the offence was anciently, as has been shewn, (n) a capital felony, such a conclusion has been thought to be unnecessary.(o) The indictment must conclude, as in other cases, " against the peace, &c. :" but where the conclusion was against the peace of our said late lord the King, the offence being in the time of the present King, and no other King had been mentioned, it was held not to be objectionable. The indictment was for a rape, stated to have been committed on the 9th March, 1 Geo. 4., and concluded “ against the peace of our said late lord the King: and, upon a case reserved, the Judges were unanimous that“ late” might be rejected;
(z) Rex v. Burrows, Micb. T. 1823. Lit. 137. MS. Bayley, J. Russ. & Ry. 519. (1) See the precedents referred to,
(8) I Hale 628. I Hawk. P. C. c. 4. ante, note (h). $. 2. 3 Inst. 60. But quære how far (m) i East. P.C. c. 10. s. 10. p. 448. it can be taken as evidence of pene- 2 Stark. Crim. Plead. 409. note (p). tration.
3 Chit. Crim. Law, 812. It is laid (h) Cro. Circ. Comp. 401. 2 Stark. down generally, in some of the books, Crim. Plead. 409. 3 Cbit. Crim. Law, that the indictment must be rapuit et 815.
carnaliter cognovit, i Hale 628, 632. (i) i Hale 628, 632. Br. Indict. pl. (n) Ante, 356. 7. citing 9 Ed. 4. c. 6.
(0) 1 East. P. C. c. 10. s. 10. p. 448. (1) 2 Inst. 180. and see 2 Hawk. but see 2 Stark. Crim. Plead. 409. P. C. c. 25. s. 56. Staundf. 81. Co. note (a).
and Holroyd, J. thought that if it stood, it was not inapplicable to the existing King, and the prisoner was executed. (c)
The indictment against aiders and abettors may lay the fact to have been done by all, or may charge it as having been done by one and abetted by the rest. Thus where, upon an appeal against several persons for ravishing the appellant's wife, an objection was taken that one only should have been charged as ravishing, and the others as accessories; or that there should have been several appeals, as the ravishing by one would not be the ravishing of the others; it was answered, that if two come to ravish, and one by comfort of the other does the act, both are principals, and the case proceeded. (a) And, in a modern case, the form of the indictment, in a charge of this kind, came under the consideration of the Judges. The indictment was against three persons for a rape, charging them all as principals in the first degree, that they ravished and carnally knew the woman; and the prisoners were all found guilty. The Judge who tried them (at Chester) doubted whether the charge could be supported; and, at his desire, the case was mentioned by Heath, J. to the other Judges, and all who were present agreed that the charge was valid, though the form was not to be recommended : but they gave no regular opinion, because the case was not regularly before
them.(6) The party ra
It is clear that the party ravished is a competent witness: and
indeed she is so much considered as a witness of necessity, that competent
where a husband has been charged with having assisted another man in ravishing his own wife, the wife has been admitted as a
witness against her husband.(P) But her credi- But though the party ravished is a competent witness, the crebility is to be dibility of her testimony must be left to the jury, upon the cirupon the con- cumstances of fact which concur with that testimony. Thus, if curring cir- she be of good fame; if she presently discovered the offence, and cumstances.
made search for the offender; if she shewed circumstances and signs of the injury, whereof many are of that nature that women only are proper examiners; if the place where the fact was done were remote from inhabitants or passengers ; if the party accused fled for it; these, and the like, are concurring circumstances, which give greater probability to her evidence. (9) But if, on the other hand, the witness be of evil fame, and stand unsupported by others; if, without being under controul, or the influence of fear, she concealed the injury for any considerable time after she had the opportunity of complaining; if the place where the fact is alleged to have been committed, was near to persons by whom she might probably have been heard, and yet she made no outcry; if she has given wrong descriptions of the place; these, and
vished is a
(c) Rex v. Scott, East. T. 1820. MS. the Chester Spr. Ass. 1813, in 5 Evans' Bayley, J. Russ. & Ry. 415.
Col. Stat. Cl. 6. p. 399. note (12).
(6) Rex v. -, Tr. T. 1813, Lord Str. 633. Ante, 557.
the like circumstances, afford a strong though not conclusive presumption that her testimony is feigned.(r)
The character of the prosecutrix as to general chastity may be impeached by general evidence.(a) But, in a case where a question was put to a prosecutrix, “Whether she had not before had “connection with other persons; and whether she had not before “ had connection with a particular person who was named ;” an objection taken to this question by the counsel for the prosecution was allowed by the learned Judge; who also allowed an objection, made by the counsel for the prosecution, to the admissibility of evidence to prove that the girl had been caught in bed, about a year before this charge was preferred, with a young man who was tendered by the prisoner's counsel to prove that he had connection with her; and the question as to the admissibility of such evidence being reserved, eight Judges, who were present at the discussion, held that both the objections were properly allowed.(b)
The application of these and other rules upon this difficult sub- Great caution ject should always be made with due regard to the cautious observ- to be used on ations of a great and experienced Judge. Lord Hale says, “ It this offence. “ is true, that rape is a most detestable crime, and therefore “ought severely and impartially to be punished with death : but “ it must be remembered, that it is an accusation easily to be “made and hard to be proved, and harder to be defended by the
party accused, though never so innocent.”(s) He then mentions two remarkable cases of malicious prosecution for this crime that had come within his own knowledge ; and concludes, “I mention “ these instances, that we may be the more cautious upon trials “ of offences of this nature, wherein the court and jury may, with
so much ease, be imposed upon without great care and vigi“ lance; the heinousness of the offence many times transporting “ the Judge and jury with so much indignation, that they are over hastily carried to the conviction of the person accused
thereof, by the confident testimony, sometimes, of malicious “ and false witnesses."(t)
It has been already mentioned, that this offence is subjected to Punishment. capital punishment; being made felony without benefit of clergy, by 18 Eliz. c. 7. (u)
Where there is no reason to expect that the facts and circum- of an assault stances of the case, when given in evidence, will establish that with intent to the crime of rape has been completed, the proper course will be, to prefer an indictment at common law, for an assault with intent to ravish; which offence, though only a misdemeanor, yet is one of a very aggravated nature, and has, in many instances, been visited with exemplary punishment. (w) But this proceeding
(r) 4 Blac. Com. 213, 214. 1 East. (w) To the extent of fine, impriP. C. c. 10. s. 7. p. 445, 446.
sonment, and pillory, and finding sure(a) Rex v. Clarke, Stark. N. P. C. ties for good behaviour for life, 1 East. 241. Stark. Evid. Part IV. p. 1269. P. C. c. 10. §. 4. p. 441. The punish
(6) Rex v. Hodgson, December 1811, ment of the pillory could not now be Russ. & Ry. 211.
imposed for such offence, in conse(8) 1 Hale 635.
quence of the 56 Geo. 3. c. 138,; and. (A) I Hale 636.
with respect to sureties for good beha(2) Ante, 556.
viour for life, it is observed, that such