convicted of an assault under the 1 Vict. c. 85, s. 11. In this case, Coleridge J., said "We are of opinion, that an indictment framed upon the statute for criminally abusing a child under the age of ten years, is not within the 11th section of the 1 Vict. c. 85; that section is only applicable where the offence charged includes an assault upon the person. Now this indictment though it does in terms allege the commission of an assault, does not charge it as material, and necessary to the issue, since consent or non consent is immaterial. In R. v. Banks, although Patteson, J., had at first some doubt upon the point, yet, in summing up, he appears to have taken this view of the case." Maule, J., said—"The 11th section of the 1 Vict. c. 18, which is introductory of a new and very peculiar law, applies by its terms to cases where the crime charged includes an assault upon the person. Now, to decide whether an alleged crime does so or not, we must look at the indictment and see what is necessary to support it, without suspending our judgment until the evidence has been adduced. It is true that the indictment alleges in so many words that the prisoner made an assault; but the question as to whether or not there was an assault, which depends on whether or not there was consent, is rendered immaterial by the terms of the act, upon which the indictment is framed. Those words, therefore, being immaterial, do not bring it within the above section. Suppose an indictment allege that A. B. made an assault on C. D., and uttered a forged note to him: that would in a certain sense charge an assault, but not in the real one. The case of R. v. Way, 9 C. & P. 722, was an attempt to abuse a child under ten years of age, which is a misdemeanor. The indictment would contain a count for a common assault, and it is in cases where the assault is substantially charged that the distinction between submission and consent becomes material." d In the subsequent case, however, of R. v. Folkes, 2 Moo. & R. 460, Rolfe, B., expressed himself to be clearly of opinion, that on an indictment for carnally knowing and abusing a girl under ten years, the prisoner may be acquitted of the felony, and convicted of an assault. Where the prisoner was charged with the misdemeanor of having carnal knowledge of a girl between ten and twelve years old, Lord Abinger, C. B., ruled that the prisoner could not be found guilty of an assault, as the consent of the girl put an end to the charge of *assault. Meredith's case, 8 C. & P. 589;* [*866] see also Martin's case, 2 Moo. C. C. 179. Where the prisoner was indicted under the 9 Geo. 4, c. 31, s. 17, for carnally knowing and abusing a girl above ten and below twelve years of age, which is a misdemeanor, and there was evidence that the act was done by force and against her will, it was contended that the prisoner was entitled to be acquitted, as the offence amounted to a rape: but the prisoner was convicted; and on a case reserved, the conviction was held to be right. R. v. Neale, 1 Den. C. C. 36. Assault with intent to ravish.] Upon an indictment for this offence the evidence will be the same as in rape, with the exception of the proof of the commission of the offence. A boy under fourteen cannot be found guilty of an assault with intent to commit a rape. See ante, p. 859. On an indictment for an assault with intent to commit a rape, Patteson, J., held that evidence of the prisoner having on a prior occasion, taken liberties with the prosecutrix, was not receivable to show the prisoner's intent. In the same case, the learned judge held, that in order to convict on a charge of d Eng. Com. Law Reps. xxxviii. 306. • Id. xxxiv. 539. assault with intent to commit a rape, the jury must be satisfied, not only that the prisoner intended to gratify his passions on the person of the prosecutrix, but that he intended to do so at all events, and notwithstanding any resistance on her part. Lloyd's case, 7 C. & P. 318.1 If upon an indictment for this offence the prosecutrix prove a rape actually committed, the defendant must be acquitted. R. v. Hammond, 1 East, P. C. 411. 440; 1 Russ. by Grea. 681. But see R. v. Neale, supra. Proof where the prisoner is charged as principal and receiver in different counts Venue 867 868 871 871 873 875 875 877 Common law and former statutes.] Before the 3 & 4 W. & M. c. 9, receivers of stolen goods, unless they likewise received and harboured the thief, were guilty only of a misdemeanor; but by that statute they were made accessaries after the fact, and consequently felons. (1) By the 1 Anne, s. 2, c. 9, the receiver might be prosecuted for a misdemeanor, though the principal was not before convicted; and by the 5 Anne, c. 31, he might be so prosecuted, though the principal could not be taken. The offence was again changed to felony by 31 Geo. 3, c. 24, s. 3. These acts being now repealed, their provisions are consolidated in the 7 & 8 Geo. 4, c. 29, (E.), and the 9 Geo. 4, c. 55,(I.) 7 & 8 Geo. 4, c. 29—punishment.]-By the 54th section (47th I.) “if any person shall receive any chattel, money, or valuable security, or other property whatsoever, the stealing or taking whereof shall amount to a felony, either at common law or by virtue of that act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony, and may be indicted and convicted, either as an accessary after the fact, or for a substantive felony; and in the latter case, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and every such receiver, howsoever convicted, shall be liable, at the discretion of the court to be transported beyond the seas for any term not exceeding fourteen years nor less than seven years, or to be imprisoned for any term not exceeding three years, and, if a male, to be once, twice, or thrice, publicly or privately (1) 1 Wheeler's C. C. 202. whipped, (if the court shall so think fit,) in addition to such imprisonment; provided always, that *no person, howsoever tried for receiving as afore- [ *868] said, shall be liable to be prosecuted a second time for the same offence." By section 55, (s. 48, I.) "if any person shall receive any chattel, money, valuable security, or other property whatsoever, the stealing, taking, obtaining or converting whereof is made an indictable misdemeanor by that act, such person knowing the same to have been unlawfully stolen, taken, obtained or converted, every such receiver shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the principal misdemeanor shall or shall not have been previously convicted thereof, or shall or shall not be amenable to justice; and every such receiver shall, on conviction be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment." To bring a case of receiving within this section, the indictment must state the misdemeanor by which the goods were stolen, taken, obtained, or converted. It is not enough to allege generally that the goods were unlawfully stolen, taken, obtained, or converted. R. v. Wilson, 2 Moo. C. C. 52. By s. 60, (s. 53, I.,) for the punishment of receivers, where the stealing, &c., is punishable on summary conviction, it is enacted, "that where the stealing or taking of any property whatsoever is punishable on summary conviction, either for every offence, or for the first and second offence only, or for the first offence only, any person who shall receive any such property, knowing the same to be unlawfully come by, shall, upon conviction thereof before a justice of the peace, be liable, for every first, second, or subsequent offence of receiving, to the same forfeiture or punishment to which a person guilty of a first, second, or subsequent offence of stealing or taking such property is by that act made liable." To support an indictment upon the 7 & 8 Geo. 4, c. 29, s. 54, the prosecutor must prove; 1, the stealing of the goods by the principal felon, if it be so stated in the indictment, or his conviction for that offence, if it be averred; 2, the receiving of the goods by the prisoner; 3, that the goods so received were those previously stolen; 4, the guilty knowledge of the prisoner. Proof of the larceny by the principal.] It is not necessary to state in the indictment the name of the principal felon, and the usual practice in the indictment against a receiver for a substantive felony is, merely to state the goods to have been "before then feloniously stolen," &c., without stating by whom. See Arch. Pl. 257, 7th ed. Where it was objected to a count charging the goods to have been stolen by "a certain evil disposed person," that it ought either to have stated the name of the principal, or else that he was unknown, Tindal, C. J., said the offence created by the act of parliament is not the receiving the stolen goods from any particular person, but receiving them, knowing them to have been stolen. The question, therefore, is, whether the goods were stolen, and whether the prisoner received them, knowing them to have been stolen. Jervis's case, 6 C. & P. 156; see also Wheeler's case, 7 C. & P. 170, post, p. 875. *Where the goods had [*869] been stolen by some person unknown, it was formerly the practice to insert an averment to that effect in the indictment, and such averment was held good. Thomas's case, 2 East, P. C. 781. But where the principal was known, the name a Eng. C. L. Reps. xxv. 330. b Id. xxxii. 483. was stated according to the truth. 2 East, P. C. 781. Where the goods were averred to have been stolen by persons unknown, a difficulty sometimes arose as to the proof, the averment being considered not to be proved, where it appeared that in fact the principals were known. Thus where, upon such an indictment, it was proposed to prove the case by the evidence of the principal himself, who had been a witness before the grand jury, Le Blanc, J., interposed, and directed an acquittal. He said he considered the indictment wrong in stating that the property had been stolen by a person unknown; and asked how the person who was the principal felon could be alleged to be unknown to the jurors when they had him before them, and his name was written on the back of the bill? Walker's case, 3 Campb. 264. It is difficult to reconcile this decision with the resolution of the judges in the following case. The indictment stated that a certain person or persons, to the jurors unknown, stole the goods, and that the prisoner received the same, knowing them to have been feloniously stolen. The grand jury also found a bill, charging one Henry Moreton with stealing the same goods, and the prisoner with receiving them. It was objected that the allegation, that the goods were stolen by a person unknown, was negatived by the other record, and that the prisoner was entitled to an acquittal. The prisoner being convicted, the point was reserved, and the judges held the conviction right, being of opinion that the finding by the grand jury of the bill, imputing the principal felony to Moreton, was no objection to the second indictment, although it stated the principal felony to have been committed by certain persons to the jurors unknown. Bush's case, Russ. & Ry. 372. An indictment charging that a certain evil disposed person feloniously stole certain goods, and that A. B. feloniously incited the said evil disposed person to commit the said felony, and that C. W. and E. F. feloniously received the said goods, knowing them to have been stolen, is bad as against A. B., the statement, that an evil disposed person stole, being too uncertain to support the charge against the accessary before the fact; but the indictment was held to be good as against the receivers as for a substantive felony. R. v. Caspar and others, 2 Moo. C. C. 101; S. C. 9 C. & P. 289.d It has been doubted whether, where the indictment alleges that the prisoner received the goods in question from a person named, it must be proved that the receipt was in fact from that person. See marginal note, Messingham's case, 1 Moo. C. C. 257. But where A. B. was indicted for stealing a gelding, and C. D. for receiving it, knowing it to have been "so feloniously stolen as aforesaid ;" and A. B. was acquitted, the proof failing as to the horse having been stolen by him; Patteson J., held that the other prisoner could not be convicted upon that indictment. Woolford's case, 1 Moo. & R. 384. So where the indictment stated that the prisoner received the goods from the person who stole them, and that the person who stole them was a person to the [*870] jurors unknown, and it appeared that the person *who stole the property handed it to J. S., who delivered it to the prisoner; Parke, J., held, that on this indictment it was necessary to prove that the prisoner received the property from the person who actually stole it, and would not allow it to go to the jury to say, whether the person from whom he was proved to have received it, was an innocent agent or not of the thief. Elsworthy's case, 1 Lewin, C. C. 117. But where three persons were charged with a larceny, and two others as accessaries, in separately receiving portions of the stolen goods; and the indictment also 1 Eng. C. C. 372. d Eng. Com. Law Reps. xxxviii. 124. 2 Eng. C. C. 257. contained two other counts, one of them charging each of the receivers separately with a substantive felony, in separately receiving a portion of the stolen goods; the principals were acquitted, but the receivers were convicted on the last two counts of the indictment. R. v. Pulham, 9 C. & P. 280. Where the indictment states a previous conviction of the principal, such conviction must be proved by the production of an examined copy of the record of the conviction, and it is no objection to such record, that it appears therein that the principal was asked if he was (not is) guilty; that it does not state that issue was joined, or how the jurors were returned, and that the only award against the principal is, that he be in mercy, &c. Baldwin's case, Russ. & Ry. 241; 3 Campb. 265; 2 Leach, 928, (n.) But if the indictment state not the conviction but the guilt of the party, it seems doubtful how far the record of conviction would be evidence of that fact. Turner's case, 1 Moo. C. C. 347, ante, p. 54. The opinion of Mr. Justice Foster, however, is in favour of the affirmative. Where the accessary, he says, is brought to trial after the conviction of his principal, it is not necessary to enter into a detail of the evidence on which the conviction was founded. Nor does the indictment aver that the principal was in fact guilty. It is sufficient if it recites with proper certainty the record of the conviction. This is evidence against the accessary, to put him on his defence; for it is founded on a legal presumption that everything in the former proceeding was rightly and properly transacted. Foster, 365. Where the indictment stated that the principal felon had been convicted of the stealing, and in support of this averment, an examined copy of the record was put in, by which it appeared that the principal had pleaded guilty, it was objected that this was merely equivalent to a confession by the principal, and was not evidence against the receiver; but Bosanquet, J., ruled, that though the principal was convicted on his own confession, yet such a conviction was primâ facie, but not conclusive evidence against the accessary. Blick's case, 4 C. & P. 377.i Where the principal felon has been convicted, it is sufficient in the indictment to state the conviction without stating the judgment. Hyman's case, 2 Leach, 925; 2 East, P. C. 782; Baldwin's case, 3 Campb. 265. A lad having stolen a brass weight from his masters, it was taken from him by another servant in the presence of one of them, and was then returned to him, in order that he might take it for sale to the prisoner, to whom he had been in the habit of selling similar articles. The lad accordingly took it and sold it to the prisoner. It was contended that the brass could not be considered as stolen property, having been restored to the possession of one of the owners, and [ *871 ] by him given to the lad to sell it to the prisoner with a view to his detection, and that such restoration, for however short a time, was sufficient to prevent its being treated afterwards as stolen property, because it was in law in the possession of the owners. Coleridge, J., said he should consider the evidence as sufficient in point of law to sustain the indictment, but would take a note of the objection. The jury found the prisoner guilty, and subsequently the learned judge, without reserving the point, passed sentence. R. v. Lyons, Carr. & M. 217.j Proof of the receiving-distinction between receiving and stealing.] It frequently happens that a doubt arises whether the acts done by the person amount to a receiving, or to a stealing, as in the following cases; from which it appears that if the prisoner took part in the transaction, while the act of larceny by others Eng. C. L. Reps. xxxviii. 121. 1 Eng. C. C. 241. i Eng. Com. Law Reps. xix. 428. j Id. xli. 122. 2 Id. 347. |