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Shtild her by the brot, jumped with hed violently, an

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.(8)

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 an 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.(l) 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;

(0) Rex v. Burrows, Micb. T. 1823. Lit. 137. MS. Bayley, J. Russ. & Ry. 519. (1) See the precedents referred to,

(g) I Hale 628. i Hawk. P. C. c. 4. ante, note (h). s. 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 Chit. Crim. Law, that the indictment must be rapuit et

carnaliter cognovit, i Hale 628, 632. (0) 1 Hale 628, 632. Br. Indict. pl. (n) Ante, 556. 7. citing 9 Ed. 4. c. 6.

() I East. P. C. c. 10. s. 10. p. 448. (k) 2 Inst. 180. and see 2 Hawk. but see 2 Stark. Crim. Plead. 409. P. C. c. 25. s. 56. Staundf. 81. Co. note (q).

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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.(b) The party ra- It is clear that the party ravished is a competent witness : and vished is a

indeed she is so much considered as a witness of necessity, that competent witness.

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 cre

to be dibility of her testimony must be left to the jury, upon the cirleft to the jury upon 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

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(c) Rex v. Scott, East. T. 1820. MS. the Chester Spr. Ass. 1813, in 5 Evans Bayley, J. Russ. & Ry. 415.

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Col. Stat. Cl. 6. p. 399, note (19). (a) Rex v. Vide and others, Fitz (p) Rex v. Lord Castlehaven, I St. Corone, pl. 86. Ante, 29, 557. Tri. 387. i Hale 629. Hutt. 116. 1

(6) Rex v. - Tr. T. 1813, Lord Str. 633. Ante, 557. Ellenborough, C. J., Mansfield, C. J., (q) 4 Blac. Com, 213. i East. P. C. and Grose, J., were absent. The case c. 10. s. 7. p. 445. is mentioned as having occurred at

15

ffence.

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

the trial of ations of a great and experienced Judge. Lord Hale says, “ It is “ 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 owu 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

ravish.

(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, 2 Stark. N. P. C. ties for good behaviour for life, i East, 241. Stark. Evid. Part IV. p. 1269. P. C. c. 10. S. 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 (C) I Hale 636.

with respect to sureties for good beha(u) Anle, 556.

viour for life, it is observed, that such

should not be adopted where there is any probability that the higher offence will be proved; as where, upon an indictment for an assault with intent to commit a rape, the prosecutrix proved a rape actually committed, a learned Judge directed an acquittal, on the ground that the misdemeanor was merged in the felony.(.r) Assaults by taking indecent liberties with females, though without actual force or violence, will be mentioned in a subsequent Chapter. (i)

SECT, II.

Of the unlawful Carnal Knowledge of Female Children.

The carnal In rape, as we have seen, the carnal knowledge must be against knowledge of the will of the party : but, by the fourth section of the statute a child under ten years old

a 18 Eliz. c.7. carnal knowledge of any woman child under the made felony age of ten years is made felony without benefit of clergy; and without cler- this without any reference to the consent or non-consent of the gy, by 18 Eliz.

child, which must therefore be considered as immaterial. c. 7.

The statute enacts, “ that if any person shall unlawfully and carnally “ know and abuse any woman child under the age of ten years, “ every such unlawful and carnal knowledge shall be felony and “ the offender, thereof being duly convicted, shall suffer as a

“ felon without allowance of clergy." The carnal It appears at one time to have been thought, that the carnal knowledge of knowledge of a child above the age of ten and under twelve years a child above

was rape, though she consented ; twelve years being the age of ten and under twelve years

consent in a female, and the statute Westm. 1. c. 13., which old made a enacts “ that none do ravish any maiden within age, neither by misdemeanor by stat. of

“ her own consent nor without," being admitted to refer, by the Westm. I. c. words “ within age,” to the age of twelve years.(y) It is, how13.

ever, now well established, that if the child be above ten years
old it is not a felonious rape, unless it be against her will and
consent.(s) But children above that age, and under twelve, are
still within the protection of this statute of Westm. 1. c. 13., the
law with respect to the carnal knowledge of such children not
having been altered by either of the subsequent statutes of
Westm. 2. c. 34. or 18 Eliz. c.7. (a) The statute Westm. 1.
c. 13. makes the deflowering a child above ten years old and
under twelve, though with her own consent, a misdemeanor
punishable by two years' imprisonment, and fine at the King's
pleasure.(b)
part of the sentence is not consonant (1) Post. chap. xi. s. 1.
to the practice of our present consti- (y) i Hale 631. 2 Inst. 180. 3 Inst,
tution in the apportionment of discre- 60.
tionary punishment; as tending to im- (-) Sum. 112. 4 Blac. Com. 212.
prisonment for life. East, P. C. ibid. 1 East. P. C. c. 10. s. 2. p. 436.

(x) Rex v. Harmwood, cor. Buller, (a) Ante, 556.
J., Winchester Spr. Ass. 1787, 1 East. (6) 4 Blac. Com. 212. East, P. C.
P. C. c. 8. S. 5. p. 411, and c. 16. s. c, 10. s. 2. p. 436.
3. p. 440. Ante, 560.

It is said, that an indictment on the statute 18 Eliz. c. 7. for Indictment on

18 Eliz, c. 7. deflowering a child under ten years of age, ought to conclude “ against the form of the statute,” because the crime, as well as the punishment, is created by that statute. (c) And that, on the same account, it is necessary for the indictment to pursue the words of the act, and charge that the defendant feloniously, unlawfully, and carnally, knew and abused the party, being under the age of ten years, without adding the word ravished.(d)

Upon prosecutions for this offence, it is an important con- Testimony of sideration how far the child, upon whom the injury has been the child. committed, is a competent witness. In former times, the competency appears to have been made to depend upon the age of the child ; and when the rule prevailed that no children could be admitted as witnesses under the age of nine years, and very few under ten, (e) the testimony of the injured child must have been for the most part excluded. A more reasonable rule has, however, been since adopted; and it appears now to be well established, that a child of any age, if capable of distinguishing between good and evil, may be examined upon oath : but that, whatever may be its age, it cannot be examined unless sworn. (f) By such capability of distinguishing between good and evil, must be understood a belief in God, or in a future state of rewards and punishments; from which the court may be satisfied that the witness entertains a proper sense of the danger and impiety of falsehood. (g)

It appears to have been allowed, that the fact of the child's having complained of the injury recently after it was received, is confirmatory evidence :(h) but where the child is not fit to be sworn, it is clear that any account which it may have given to others ought not to be received. (i) Thus, on an indictment for a rape on a child of five years of age, where the child was not examined, but an account of what she had told her mother about three weeks after the transaction was given in evidence by the mother; and the jury convicted the prisoner principally, as was supposed, on that evidence; the Judges, on a case reserved for their opinion, thought the evidence clearly inadmissible; and the prisoner was accordingly pardoned. (K)

In all cases of this kind, it is undoubtedly much to be wished that, in order to render the evidence of the child credible, there should be some concurrent testimony, of time, place, and circumstances, in order to make out the fact; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion.(1) But no general rule can be laid down on the subject; and as a prisoner may be legally

(c) | East. P. C. c. 10. S. 10. p. 4 Blac. Com. 214. Anon. Dy. 304 a. 448.

(g) White's case, i Leach 430, 431. (d) Id. ibid.

and the cases cited, Id. 431, note (a) (e) Rex v. Travers, 1 Str. 700. Rex and see post, Book on Evidence. v. Dunnel, 1 East. P. C. c. 10. s. 5. p. (h) Brazier's case, ante, note (f). 442. Hale 302. 2 Hale 278.

(i) Phil. on Evid. 15. (f) Brazier's case, Reading Spring (1) Tucker's case, 1808. Phil. on Ass. 1779. 1 East. P. C. c. 10. s. 5. Evid. 15. p. 443, 444. I Leach 199, S. C. Powell's (1) 4 Blac. Com. 214. case, I Leach 110. Bull. N. P. 293.

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