But he may be convicted of an assault under the 1 Vict. c. 85, s. 11. R. v. Brimilow, 2 Moo. C. C. 122; S. C. 9 C. & P. 366. Although a husband cannot be guilty of a rape upon his own wife, he may be guilty as a principal in assisting another person to commit a rape upon her. Lord Audley's case, 1 St. Tr. 387, fo. ed. 1 Hale, P. C. 629. The wife in this case is a competent witness against her husband. Id. Where a prisoner was convicted of a rape on an indictment, which charged that he "in and upon E. F., &c., violently and feloniously did make, (omitting the words an assault,') and her the said E. F., then and there against her will violently and feloniously did ravish and carnally know against the form of the statute," &c.; it was held by ten of the judges, that the omission of these words was no ground for arresting the judgment. R. v. James Allen, 9 C. & P. 521. Proof with regard to the person upon whom the offence is committed.] It must appear that the offence was committed against the will of the woman; but it is no excuse that she yielded at last to the violence, if her consent was forced from her by fear of death or by duress. Nor is it any excuse, that she consented after the fact, or that she was a common strumpet; for she is still under the protection of the law, and may not be forced; or that she was first taken with her own consent, if she was afterwards forced against her will; or that she was a concubine to the ravisher, for a woman may forsake her unlawful course of life, and the law will not presume her incapable of amendment. All these circumstances, however, are material, to be left to the jury in favour of the accused, more especially in doubtful cases, and where the woman's testimony is not corroborated by other evidence, 1 East, P. C. 444; 1 Hale, 628. 631; Hawk. P. C. b. 1, c. 41, s. 2. The opinion, that, where the woman conceived, it could not be rape, because she must have consented, is now completely exploded. 1 East, P. C. 445; 1 Russ. by Grea. 677. Whether carnal knowledge of a woman, who, at the time of the commission of the offence, supposed a man to be her husband, is a rape, came in question in the following case. The prisoner was indicted for a burglary, with intent to commit a rape. It appeared that the prisoner got into the woman's bed, as if he had been her husband, and was in the act of copulation, when she made the discovery; upon which, and before completion, he desisted. The jury found that he had entered the house with intent to pass for her husband, and to have connection with her, but not with the intention of forcing her, if she made the discovery. The prisoner being convicted, upon a case reserved, four of the judges thought that the having carnal knowledge of a woman, whilst she was under the belief of its being her husband would be a rape; but the other eight judges thought that it would [*861] *not; several of the eight judges intimated that if the case should occur again, they would advise the jury to find a special verdict. (1) Jackson's case, Russ. & Ry. 487.5 So where it appeared from the evidence of the prosecutrix, that the prisoner had got into her bed while she was asleep, and that she had allowed him to have connection with her, believing him to be her husband, and that she did not discover who he was till after the connection was over; Alderson, B., held that the charge of rape could not be maintained; but the prisoner was found guilty of an assault under the 7 Wm. 4 and 1 Vict. c. 85, s. 11, ante, p. 294. The learned Baron (1) It seems that it is as much a rape when effected thus by stratagem, as by force. People v. Barton, 1 Wheeler's C. C. 378. 381, n. Commonwealth v. Fields, 4 Leigh, 648. observed, "In an assault of this nature there need not be resistance, the fraud is enough. If resistance is prevented by the fraud of the man who pretends to be the husband, that is sufficient." Williams's case, 8 C. & P. 286. Also in Saunder's case, Ibid. 265, where the circumstances were nearly similar, the prisoner was found guilty of an assault under the directions of Gurney, B. See also R. v. Stanton, 1 C. & K. 415.j Proof of the offence.] By the 9 Geo. 4, c. 31, s. 18, (the 10 Geo. 4, c. 34, I.) reciting that "upon trials for the crimes of buggery and of rape, and of carnally abusing girls under the respective ages hereinbefore mentioned, offenders frequently escape by reason of the difficulty of the proof which has been required of the completion of those several crimes;" for remedy thereof, it is enacted, "that it shall not be necessary, in any of those cases, to prove the actual emission of seed in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penetration only." In a case which occurred soon after the passing of this statute, Taunton, J., ruled that, notwithstanding the above provision, it was still necessary, in order to complete the offence, that all which constitutes carnal knowledge should have happened, and that the jury must be satisfied, from the circumstances, that emission took place. Russell's case, 1 Moo. & Rob. 122. But this decision has been repeatedly overruled by Hullock, B., in Jenning's case, 4 C. & P. 249;k by Parke, in Cozin's case, 6 C. & P. 351; and lastly, upon two cases reserved, Reekspear's case, 1 Moody, C. C. 342;m and Cox's case, Id. 337," 5 C. & P. 297 ;° in which case it was held by the judges, that proof of penetration is sufficient, notwithstanding emission be negatived. In a more recent case, in which it was suggested by the counsel for the defence that Cox's case was not argued before the judges by counsel, and that doubts of the propriety of the decision were said to be entertained by the two judges not present; Patteson, J., said, "It is true that the case was not argued, but still I cannot act against their decision." The learned judge afterwards said, that if it should prove necessary the case would be further considered. The prisoner, however, was acquitted. Brook's case, 2 Lew. C. C. 267. It has been made a question, upon trials for this offence, how far the circumstances of the hymen not being injured, is proof that there has been no penetration. In one case, where it was proved not to have been broken, Ashhurst, J., left it to the jury to say whether penetration was proved; for that if there were any, however small, the rape was complete in law. The prisoner being convicted, the judges held the conviction right. They said that, in such cases, the least degree of *penetration was sufficient, though it might not be attended with the [*862 ] deprivation of the marks of virginity. Russen's case, 1 East, P. C. 438. But in a late case, Gurney, B., said, "I think that if the hymen is not ruptured, there is not a sufficient penetration to constitute the offence. I know that there have been cases in which a less degree of penetration has been held to be sufficient; but I have always doubted the authority of those cases." Gammon's case, 5 C. & P. 321. So in Beck's Medical Jurisprudence, p. 36, it is said that it would be difficult to support an accusation of rape where the hymen is found entire. (1) (1) State v. Le Blanc, 1 Const. Rep. 354. Pennsylvania v. Sullivan, Addison, 143. Eng. C. L. Reps. xxxiv. 392. 1 Id. xxv. 434. m 2 Eng. C. C. 342. j Id. xlvii. 415. i Id. 383. n Id. 337. 0 P Id. xxiv. 339. * Id. xix. 368. Eng. C. L. Reps. xxiv. 328. In a late case where the prisoner was indicted for carnally knowing a child under ten years of age, the surgeon stated that her private parts internally were very much inflamed, so much so that he was not able to ascertain whether the hymen was ruptured or not, Bosanquet, J., (Coleridge and Coltman, JJ., being present) said, "It is not necessary in order to complete the offence, that the hymen should be ruptured, provided that it is clearly proved that there was penetration; but where that which is so very near to the entrance has not been ruptured, it is very difficult to come to the conclusion that there has been penetration so as to sustain a charge of rape." The prisoner was found guilty of an assault. M'Rue's case, 8 C. & P. 641. In R. v. Hughes, 2 Moo. C. C. 190, it was held, on a case reserved, that penetration, short of rupturing the hymen, is sufficient to constitute the crime of rape; and see R. v. Linos, post, p. 863. On a trial for rape, it was proved that the prisoner made the prosecutrix quite drunk, and that when she was in a state of insensibility, the prisoner took advantage of it and violated her. The jury convicted the prisoner, and found that the prisoner gave her liquor for the purpose of exciting her, and not with the intention of rendering her insensible, and then having sexual intercourse with her. The fifteen judges held that the prisoner was properly convicted of rape. R. v. Chaplin, 1 C. & K. 746. If the evidence be insufficient to support the charge of rape the prisoner may be convicted of an assault; see ante, p. 294, and Williams's case, ante, p. 860. Accessaries.] An indictment charging the prisoner both as principal in the first degree, and as aiding and abetting other men in committing a rape, was held, after conviction, to be valid, upon the count charging the prisoner as principal. Upon such an indictment it was held that the evidence might be given of several rapes on the same woman, at the same time, by the prisoner and other men each assisting the other in turn, without putting the prosecutor to elect on which count to proceed. Folkes's case, 1 Moody, C. C. 354. So a count charging A. with a rape, as principal in the first degree, and B. as principal in the second degree, may be joined with another count charging B. as principal in the first degree, and A. as principal in the second degree. Gray's case, 7 C. & P. 164.t Competency and credibility of the witnesses.] The party ravished, says Lord Hale, may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far she is to be believed, must be left to the jury, and is more or less credible, according to the circumstances of fact that [*863] concur in that testimony. *For instance, if the witness be of good fame, if she presently discovered the offence, and made pursuit after the offender, showed circumstances and signs of the injury, (whereof many are of that nature that women only are the most proper examiners and inspectors;) if the place, in which the fact was done, was remote from people, inhabitants, or passengers; if the offender fled for it; these and the like are concurring evidences to give greater probability to her testimony, when proved by others as well as herself. 1 Hale, 633; 1 East, P. C. 448. On the other hand, if she concealed the injury for any considerable time, after she had an opportunity to complain; if the place, where the fact was supposed to have been committed, was near to inhabitants, or the 4 Eng. Com. Law Reps. xxxiv. 562. 2 Eng. C. C. 354. Id. xlvii. 746. common recourse or passage of passengers, and she made no outcry when the fact was supposed to be done, where it was probable she might have been heard by others; such circumstances carry a strong presumption that her testimony is false. (1) Ibid. The fact the prosecutrix made a complaint soon after the transaction was admissible, but the particulars of her complaint cannot be given in evidence; see ante, p. 23. She may be asked whether she named a person as having committed the offence, but not whose name she mentioned. Per Cresswell, J., R. v. Osborne, Carr. & M. 622." But though the particulars of what she said cannot be asked in chief of the confirming witness, they may in cross-examination. R. v. Walker, 2 Moo. & R. 212. A strict caution is given by Lord Hale, with regard to the evidence for the prosecution in cases of rape: "An accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent." 1 Hale, 635. General evidence of the prosecutrix's bad character is admissible, ante, p. 96; but not evidence that she had connection with a particular person. R. v. Hodgson, Russ. & Ry. 211; R. v. Clarke, 2 Stark. N. P. 244," ante, p. 97, (but see infra;) though the prosecutrix may be asked whether she has been formerly connected with the prisoner. Ante, p. 97. So Williams, J., held that the prosecutrix may be asked whether previous to the commission of the alleged rape, the prisoner has not had intercourse with her, with her own consent. Martin's case, 6 C. & P. 562.* On a trial for rape, Park, J., (after consulting Mr. Justice James Parke) allowed the prisoner's counsel to ask the prosecutrix, with a view to contradict her, whether since the alleged offence she had not walked in the town of Oxford to look out for men, and whether she had not walked in High-street with a woman reputed to be a common prostitute. Barker's case, 3 C. & P. 589. On a trial for rape, the prosecutrix having on cross-examination denied that she had had connection with other men than the prisoner, those men may be called to contradict her. Per Coleridge, J., after consulting Erskine, J. R. v. Robins, 2 Moo. & R. 512. In R. v. Tessington, 1 Cox, C. C., Lord Abinger, on a trial for rape, allowed witnesses to be called to prove general want of decency in the prosecutrix, and then permitted the prosecutrix to call witnesses to rebut their evidence. Where the prosecutrix, a servant, stated that she made almost immediate complaint to her mistress, and that on the next day a washerwoman washed her clothes, on which was blood; and it appeared that neither the mistress nor the washerwoman were under *recognizance to give evidence, nor were their [ *864 ] names on the back of the indictment, but they were at the assizes as witnesses for the prisoner, Pollock, C. B., directed that they should both be called by the counsel for the prosecution, but said that he should allow the counsel for the prosecution every latitude in their examination. R. v. Stroner, 1 C. & K. 650.* See ante, p. 164. Of the unlawful carnal knowledge of female children.] The unlawful carnal knowledge of female children, under the age of ten years was declared to be felony, without benefit of clergy, by the 18 Eliz. c. 7; but that act being repealed by the 9 Geo. 4, c. 31, it is enacted by the latter statute, sect. 17, (and by the 10 Geo. 4, c. 34, I.) "that if any person shall unlawfully and carnally know and abuse any girl under the age of ten years, every such offender shall be guilty of felony, [and being convicted thereof, shall suffer death as a felon;} and if any person shall carnally know and abuse any girl, being above the age of ten years and under the age of twelve years, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for such term as the court shall award." The punishment for the felony is modified to transportation for life, by the 4 and 5 Vict. c. 57, s. 3, (E.), and the 5 Vict. st. 2, s. 2, c. 28, s. 15,(I.) Upon an indictment for carnally knowing a girl under ten years of age, the proof for the prosecution will be, 1, the commission of the offence; 2, that the child is under ten years of age. The child herself, however tender her age, if incapable of distinguishing between right and wrong, may be examined in proof of the offence. Brazier's case, 1 East, P. C. 433, ante, p. 125; but her declarations are inadmissible; Tucker's case, Phill. Ev. 6, 8th ed., ante, p. 126; though the fact of her having complained of the injury, recently after its having been received, is evidence in corroboration. Brazier's case, supra; see ante, p. 23. The propriety of corroborating the testimony of the infant, in a case of this kind, has been remarked upon by Mr. Justice Blackstone.(1) 4 Com. 214, ante, p. 126. As to putting off the trial, for the purpose of having the infant witness instructed, vide ante, p. 126. The age of the child must be proved. Where the offence was committed on the 5th of February, 1832, and the father proved, that on his return home on the 9th of February, 1832, after an absence of a few days, 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 she had been baptized on the 9th of February, 1822; this evidence was held insufficient to prove the age. Wedge's case, 5 C. & P. 298.a If on the trial of an indictment under this statute, the jury are satisfied, that, at any time, any part of the virile member of the prisoner, was within the labia of the pudendum of the child, no matter how little, this is sufficient to constitute a penetration, and the jury ought to convict the prisoner of the complete offence. Per Parke, B. R. v. Lines, 1 C. & K. 393. [*865] In Bank's case, 8 C. & P. 574, Patteson, J., held that the offence *of carnally knowing a child under ten years of age is not an offence which includes an assault within the 7 Wm. 4, and 1 Vict. c. 85, s. 11, see ante, p. 294; and that the jury must either find the prisoner guilty of the whole charge or acquit him. In M'Rue's case, however, where the prisoner was charged with a similar offence, before Bosanquet, Coleridge, and Coltman, JJ., he was found guilty of an assault under that act." See ante, p. 862. In a more recent case, R. v. Stevens, 1 Cox, C. C. 225, Mr. Justice Patteson, in citing a note on this point by Mr. Greaves, in his addition of Russell on Crimes, vol. i. p. 697, thought the matter well worthy of further and serious consideration. In a subsequent case, R. v. Hughes, 1 Cox, C. C. 247, it was decided by Coleridge, and Maule, JJ., that, upon an indictment for a rape committed upon a child under ten years of age, whether the child consent or not the prisoner cannot be (1) State v. Le Blanc, 1 Const. Rep. 354. Eng. Com. Law Reps. xxiv. 539. b Id. xlvii. 533. • Id. xxxiv. 581. |