Cr. Pl. (21st ed.) p. 825), would not enable the jury to find the defendant guilty of a common assault. R. v. Catherall, 13 Cox, 109. They are therefore omitted from later editions.

By s. 9 of 48 & 49 Vict. c. 69 (ante, p. 906), the defendant may on this indictment be convicted of an indecent assault or of a misdemeanor under ss. 3, 4, or 5 of the Act.

Felony penal servitude for life or for not less than three years, or imprisonment, with or without hard labour, not exceeding two years. 48 & 49 Vict. c. 69, s. 4; 54 & 55 Vict. c. 69, s. 1 (ante, p. 235). As to the sentence in the case of an offender whose age does not exceed sixteen years, see 48 & 49 Vict. c. 69, s. 4 (ante, p. 912).

This offence is not triable at quarter sessions. 5 & 6 Vict. c. 38, s. 1 (ante, p. 126); 48 & 49 Vict. c. 69, s. 17 (ante, p. 902).

Evidence.

The evidence is the same as in rape, with this exception, that it is immaterial whether the act was done with or without the consent of the female. If it was in fact without her consent, an indictment for rape will lie, notwithstanding the age of the child. R. v. Dicken, 14 Cox, 8, Mellor, J. So, where the prisoner was indicted for an attempt to commit the felony, and the evidence was that he had attempted to have carnal knowledge of the girl, but that she had consented to the attempt, it was held that the fact of her consent was immaterial, and that the prisoner was properly convicted. R. v. Beale, L. R. 1 C. C. R. 10; 35 L. J. (M. C.) 60; 10 Cox, 157. In order to prove carnal knowledge under s. 4, it is not necessary to prove emission. R. v. Marsden [1891] 2 Q. B. 149; 60 L. J. (M. C.) 171; 17 Cox, 297. As to the admissibility of statements made by the girl immediately after the commission of the alleged offence, see R. v. Lillyman (ante, p. 319): R. v. Osborne, 21 T. L. R. 288 (C. C. R.) (post, p. 919).

Upon the trial of an indictment charging a felony under s. 4, the prisoner cannot be found guilty of a misdemeanor except by statute; a prisoner, therefore, who is indicted for a felony under s. 4 of 48 & 49 Vict. c. 69 cannot be convicted of a common assault merely, notwithstanding the provisions of s. 9 of that Act (ante, p. 906), whereby it is enacted that if on the trial of an indictment under s. 4 the jury are satisfied that the defendant is guilty of an offence under ss. 3, 4, or 5 of that Act, or of an indecent assault, but are not satisfied that the defendant is guilty of the felony charged in the indictment or of an attempt to commit the same, the jury may acquit the defendant of the felony, and find him guilty of such offence as aforesaid, or of an indecent assault. See R. v. Catherall, 13 Cox, 109, Amphlett, B. (decided before 1885).

Evidence of children of tender years.]—Where upon the hearing of the charge, the girl in respect of whom the offence is charged to have been committed, or any other child of tender years who is tendered as a witness, does not, in the opinion of the court, understand the nature of an oath, the evidence of such girl or other child of tender years may be received, though not given upon oath, if, in the opinion of the court, such girl or other child of tender years is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth, subject however to this important proviso, that no person shall be liable to be convicted of the offence unless the testimony admitted by virtue of this section, and given on behalf of the prosecution, shall be corroborated by some other material evidence in support thereof, implicating the accused. 48 & 49 Vict. c. 69, s. 4 (ante, pp. 912, 913). It is not

clear whether the reference to offences involving bodily injury to a child under sixteen in 4 Edw. 7, c. 15, sched. 1, apply the procedure and evidence sections of that Act to the offence: see ante, p. 888. Where upon the trial of an indictment under 48 & 49 Vict. c. 69, s. 4 (ante, p. 912), for unlawfully and carnally knowing a girl under the age of thirteen years, the defendant was acquitted of that charge, but was convicted of an indecent assault under the provision of s. 9 of that statute, it was held that he was rightly convicted, although the girl had been examined under s. 4 without being sworn, although without her evidence the evidence would have been insufficient to justify a conviction for indecent assault, and although the statute contains no provision rendering unsworn evidence admissible on an indictment for indecent assault. R. v. Wealand, 20 Q. B. D. 827; 57 L. J. (M. C.) 44; 16 Cox, 402. Where an indictment contained two counts, the first of which charged the defendant under 48 & 49 Vict. c. 69, s. 4, with attempt to have carnal knowledge of a girl under thirteen, and the second charged an indecent assault under 24 & 25 Vict. c. 100, s. 52, it was held that the unsworn evidence of the girl, although admissible in support of the first count, was inadmissible on the second count. R. v. Paul, 25 Q. B. D. 202; 59 L. J. (M. C). 138; 17 Cox, 111. This case is overruled by 4 Edw. 7, c. 15, s. 15, and sched. 1 (ante, pp. 883, 887), as to offences under s. 52, against a girl under sixteen. Evidence not upon oath given before the committing magistrate under the provisions of 48 & 49 Vict. c. 69, s. 4, and reduced into writing, signed and returned by him with the depositions of the other witnesses in the case, cannot be read against the prisoner on his trial, although the witness may be so ill as not to be able to travel, as the provisions of 11 & 12 Vict. c. 42, s. 17, only apply to depositions taken upon oath or affirmation. R. v. Prunley, 16 Cox, 344, Cave, J. This decision does not apply to cases within 4 Edw. 7, c. 15, ss. 15, 16 (ante, pp. 883, 884).

Proof of age.]-The girl must be proved to have been under thirteen years of age when the offence was committed. The safer way of doing this is to produce a duly certified copy of the certificate of birth, coupled with evidence of identity; but the age may be proved by any other legal means. See R. v. Cox [1898] 1 Q. B. 179; 18 Cox, 672; and the other cases collected (ante, p. 353). Where the offence was committed on the 5th of February, 1842, and the child's father proved that on his return home, after an absence of a few days, on the 9th day of February, 1832, he found the child had been born, and was told by the grandmother that she had been born the day before, and the register of baptism showed that the child had been baptized on the 9th of February, 1832; this evidence was held not sufficient to prove the age of the child, it being under the then state of the law necessary to prove that the child was under the age of ten years at the time of the alleged offence. R. v. Wedge, 5 C. & P. 298. See R. v. Nicholls, 10 Cox, 476, and R. v. Weaver, L. R. 2 C. C. R. 85; 43 L. J. (M. C.) 13 (post, p. 916). As to evidence by the defendant and his wife, see ante, pp. 392-398.

The presumption of law that a male under the age of fourteen cannot be guilty of the felony of carnal knowledge of a female (ante, pp. 22, 344), is not rebutted by 48 & 49 Vict. c. 69, s. 4. R. v. Waite [1892] 2 Q. B. 600; 61 L. J. (M. C.) 187; 17 Cox, 554. But although a boy under fourteen, who is tried on an indictment under s. 4 of the Criminal Law Amendment Act, 1885, charging him with having had carnal knowledge of a girl under thirteen, is entitled to be acquitted of that offence, he may be convicted of an indecent assault under s. 9 of that Act. R. v. Williams [1893] 1 Q. B. 320; 62 L. J. (M. C.) 29.

Indictment for carnally knowing and abusing a Girl of or above Thirteen and under Sixteen Years. (48 & 49 Vict. c. 69, s. 5, sub-s. 1, ante, p. 913.)

Commencement as ante, p. 914]-in and upon one A. N., a girl of [or above] the age of thirteen years and under the age of sixteen years, to wit, of the age of fourteen years and two months, unlawfully did make an assault, and her the said A. N. did then unlawfully and carnally know ; against the form [as ante, p. 840]. On this indictment the prisoner can be convicted of common assault. R. v. Bostock, 17 Cox, 700, Charles J.: R. v. Guthrie, L. R. 1 C. C. R. 241 (post, p. 918).

Add a count charging an indecent assault, for the form of which see post, p. 919.

No indictment can be preferred for this offence unless one or other of the preliminary steps required by 22 & 23 Vict. c. 17, as extended by 30 & 31 Vict. c. 35, s. 1 (ante, p. 7, et seq.), has been taken. 48 & 49 Vict. c. 69, s. 17 (ante, p. 902).

66

A girl of thirteen and under sixteen cannot be indicted for "abetting" or inciting" to the commission of this offence on herself. R. v. Tyrrell [1894] 1 Q. B. 710; 63 L. J. (M. C.) 58; 17 Cox, 716 (C. C. R.). Misdemeanor: imprisonment, with or without hard labour, not exceeding two years. 48 & 49 Vict. c. 69, s. 5.

This offence is not triable at quarter sessions. 48 & 49 Vict. c. 69, s. 17 (ante, p. 902).

Evidence.

The evidence is the same as in rape, with this exception, that it will be no defence that the girl consented. If she did not consent, it will be a rape, and the defendant may be indicted accordingly. R. v. Ratcliffe, 10 Q. B. D. 74; 52 L. J. (M. C.) 40 (ante, p. 908). As to the admissibility of statements made by the girl immediately after the commission of the alleged offence, see R. v. Lillyman (ante, p. 319): R. v. Osborne, 21 T. L. R. 288 (C. C. R.) (post, p. 919). In R. v. Neale, 1 Den. 36; 1 C. & K. 591, on an indictment under 7 G. 4, c. 31, s. 17 (rep.), for carnally knowing a girl over ten and under fourteen, it was held that proof that the girl did not consent did not take the case out of the statute, nor afford any defence to the indictment, though such facts would have justified indictment and conviction for rape. See also 14 & 15 Vict. c. 100, s. 12 (ante, p. 218). In order to prove carnal knowledge under s. 5, it is not necessary to prove emission. R. v. Marsden [1891] 2 Q. B. 149; 60 L. J. (M. C.) 171; 17 Cox, 297. The child must be proved to be of or above the age of thirteen years, and under the age of sixteen years. Where the mother of the child stated that she was ten years of age last March, although on cross-examination it appeared that the witness knew neither the year nor the month of the child's birth, and she also gave confused and inconsistent answers as to the ages of her children, it was held that there was evidence to go to the jury of the age of the child. R. v. Nicholls, 10 Cox, 476. The age of the child may be proved by the production of a certified copy of the entry of its birth in the register of births kept under 6 & 7 W. 4, c. 86; R. v. Weaver, L. R. 2 C. C. R. 85; 43 L. J. (M. C.) 13; coupled with identification of the child with that named in the certificate. See ante, p. 353, and R. v. Wedge, 5 C. & P. 298 (ante, p. 916). But this mode of proof does not exclude evidence of age by persons who know the child. R. v. Cox [1898] 1 Q. B. 179; 18 Cox, 672 (C. C. R.). It is a sufficient defence to this charge if it shall be made to appear to the court or jury before

whom the charge shall be brought, that the defendant had reasonable cause to believe that the girl was of or above sixteen years of age. 48 & 49 Vict. c. 69, s. 5, sub-s. 1 (ante, p. 913). No prosecution can be commenced for this offence more than six months after its commission. 4 Edw. 7, c. 15, s. 27, (ante, p. 913); as to what is a commencement of the prosecution, see R. v. West [1898] 1 Q. B. 174, and ante, p. 96. As to evidence by the defendant, see ante, p. 392, et seq. The defendant's wife is a competent witness for the prosecution or the defence, even without his consent, but is not compellable. 4 Edw. 7, c. 15, s. 12, and sched. 1 (ante, pp. 882, 887).

On an indictment for either of the offences mentioned in these two sections (4, 5) the defendant may, whether the girl consented or not (R. v. Beale, L. R. 1 C. C. R. 10; 35 L. J. (M. C.) 60; R. v. Ryland, 11 Cox, 101), be convicted of an attempt to commit the felony or misdemeanor charged, if the facts proved warrant such a finding; 14 & 15 Vict. c. 100, s. 9 (ante, p. 219); and may have sentence of imprisonment not exceeding two years, with or without hard labour, such sentence being authorized where the girl is under thirteen by 48 & 49 Vict. c. 69, s. 4, and where the girl is of or above thirteen and under sixteen, by s. 5 of the same statute. It is said that on an indictment for the statutory misdemeanor under s. 5, sub.-s. 1 (ante, p. 913), the defendant cannot, if the girl's age be proved to be under thirteen years, be convicted; for 14 & 15 Vict. c. 100, s. 12 (ante, p. 219), has been held to apply only where an indictment for misdemeanor is proved by facts amounting to a felony. R. v. Shott, 3 C. & K. 206 (ante, p. 93). Sed quære; see 2 Taylor Ev. (9th ed.) 1128.

It would seem that evidence of prior offences outside the six months limit may not be given for the prosecution, but may be obtained by cross-examination. R. v. Beighton, 18 Cox, 535, Pollock, B.: see 61 & 62 Vict. c. 36, s. 1 (f) (ante, p. 395).

If upon the trial of an indictment framed as above under s. 5, the offence of carnally knowing be disproved, the defendant may nevertheless be found guilty of a common assault, if the facts proved warrant such a verdict. R. v. Bostock, 17 Cox, 700, Charles, J.: R. v. Guthrie, L. R. 1 C. C. R. 241; 39 L. J. (M. C.) 95. If, however, the girl is over thirteen and consented, the defendant cannot be found guilty of a common assault. See R. v. Meredith, 8 C. & P. 589, and other cases (ante, p. 834).

INDECENT ASSAULT, ETC.

Statute.

24 & 25 Vict. c. 100 (Offences against the Person Act, 1861), s. 52— Indecent assault on females.]-Whosoever shall be convicted of any indecent assault upon any female . . . shall be liable, at the discretion of the court, to be imprisoned for any term not exceeding two years, with or without hard labour.

24 & 25 Vict. c. 100, s. 62-Indecent assault on males.]-Post, p. 925.

43 & 44 Vict. c. 45 (Criminal Law Amendment Act, 1880), s. 2.]—— It shall be no defence to a charge or indictment for an indecent assault

on a young person under the age of thirteen to prove that he or she consented to the act of indecency. [This enactment got rid of the decisions in R. v. Read, 1 Den. 377; 2 C. & K. 957: R. v. Johnson, L. & C. 632; 34 L. J. (M. C.) 192: R. v. Wollaston, 12 Cox, 180. As to consent by children of tender years, see R. v. Lock, L. R. 2 C. C. R. 10; 42 L. J. (M. C.) s. 5, and ante, p. 834.]

48 & 49 Vict. c. 69, s. 9-Power on indictment for rape or felony under 8. 4 of Criminal Law Amendment Act, 1885, to convict of indecent assault.] -Ante, p. 906.

Sect. 20-Person charged and husband or wife of person charged to be competent but not compellable witnesses.]-Ante, p. 906.

61 & 62 Vict. c. 36, ss. 1, 4, sched.-Evidence by person charged and husband and wife of person charged.]-Ante, pp. 392–398.

4 Edw. 7, c. 15, ss. 12-18, and sched. 1-Procedure and evidence in case of offences under 24 & 25 Vict. c. 100, s. 52, against a girl under sixteen.]— Ante, pp. 882-887.

Indictment. (24 & 25 Vict. c. 100, s. 52, ante, p. 918.)

Commencement as ante, p. 914]-one A. N. unlawfully and indecently did assault, and her the said A. N. did then beat, wound, and ill-treat [and other wrongs to the said A. N. did], to the great damage of the said A. N.; against the form [as ante, p. 840].

Where the assault is on a girl under thirteen, the fact that she is so should be stated in the indictment, because of 43 & 44 Vict. c. 45, s. 2, supra; and of the provisions as to presuming age in 4 Edw. 7, c. 15, s. 17, and sched 1. (ante, pp. 884, 887).

No indictment can be preferred for any indecent assault unless one or other of the preliminary steps required by 22 & 23 Vict. c. 17, s. 1 (as extended by 30 & 31 Vict. c. 35, s. 1), has been taken. See ante, p. 7, et seq. Misdemeanor: imprisonment, with or without hard labour, not exceeding two years. 24 & 25 Vict. c. 100, s. 52. As to fining the offender and requiring him to enter into recognizances and find sureties for keeping the peace and being of good behaviour, Id. s. 71 (ante, p. 778).

Evidence.

Prove an assault, accompanied with circumstances of indecency on the part of the defendant. If the person assaulted is under thirteen, his or her consent is no defence. 43 & 44 Vict. c. 45, s. 2, and note (ante, p. 918). In R. v. Osborne, 21 T. L. R. 288 (C. C. R.), it was held that R. v. Lillyman (ante, p. 319) applied to a charge of indecent assault on a girl under thirteen, although consent is not a material element in such an offence, and that a statement by the girl in answer to a question made immediately after the alleged offence was admissible, if the question was neither leading, suggestive, nor of an intimidating character. This decision overrules R. v. Kingham, 66 J. P. 393, and R. v. Merry, 19 Cox, 442. If the child assaulted is under sixteen, the court may take unsworn evidence from her or any other child witness, subject to corroboration. 4 Edw. 7, c. 15, s. 15 (ante, p. 883). As to effect of non-resistance by a girl over thirteen to indecent acts by her schoolmaster, see R. v. McGavaran, 6 Cox, 64, As to proof of the age of the child, see ante p. 353, and