Page images
PDF
EPUB

hurst, J., left it to the jury to say whether any penetration were proved.

And the

Judges afterwards held, upon a conference (De Grey, C. J., and Eyre, B.. being absent), that this direction was perfectly right; and the least degree of penetration is sufficient, though it may not be attended with the deprivation of the marks of virginity.(p)

Whatever doubts may have been entertained as to the extent of penetration that was necessary since the 9 Geo. 4, c. 31, it is now settled that any penetration is sufficient, although the hymen be not ruptured. On an indictment for abusing a child, under ten years old, where it was proved that the hymen was ruptured, Mr. B. Gurney said, "I think that if the hymen is not ruptured, there is not a sufficient penetration to constitute this 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; and I have always thought, and still think, that if there is not a sufficient penetration to rupture the hymen, it is not a sufficient penetration to constitute this offence."(q) But in a similar case, where the surgeon was not able, through the great inflammation that existed, to ascertain whether the hymen had been ruptured or not: Bosanquet, J., (Coleridge and Coltman, JJ. being present,) said, "It is not necessary, in order to complete the offence, that the hyman should be ruptured, provided 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 [*913 has beeu penetration so as to sustain a charge of rape."(r) So *also in a similar case, where no evidence was given to show that the hymen had been ruptured, and it was urged, on the authority of Rex v. Gammon,(s) that it was essential that the hymen should have been ruptured, in order to constitute sufficient penetration. Williams, J., said, "I am of opinion, as matter of law, that it is not essential that the hymen should be ruptured. In the case of Rex v. Gammon, the hymen was ruptured, and the point was not therefore necessary to the decision of that case. I also think that it is impossible to lay down any express rule, as to what constitutes penetration. All I can say is, that the parts of the male must be inserted in those of the female; but I cannot suggest any rule as to the extent.”(t)

And, lastly, where, on an indictment for a rape, the jury found that there had been penetration, but that the penetration had not proceeded to the rupture of the hymen, Coleridge, J., reserved the point, but on its coming on for argument before the Judges, his lordship said, "I reserved this case, from respect to my brother Gurney, on account of a dictum of his.(u) There is an express decision on this point by the twelve Judges, (v) and my brother Gurney says that he does not now hold the same opinion. There is, therefore, nothing in the case."(w)

But whether or not there must be emissio seminis, in order to constitute a rape, is a point which has been much doubted, and upon which very different opinions have been holden (x) The latter cases differ also upon this question. Thus, in a case of sodomy, which is governed by the same principles as rape, six Judges held, upon a special verdict, finding penetration but the emission out of the body, that both emission and penetration were necessary; while, on the other hand, five Judges thought that the injectio seminis was not necessary; and they said that injection cannot be proved in the case of a child, or of bestiality, and that penetration may be evidence of emission.(y) Subsequently to this case, Willes, C. J., presiding at a trial for this offence (p) Rex v. Russen, O. B. Oct. 1777. Serjt. Foster's MS.; 1 East P. C. c. 10, s 3, pp. 438, 439; MS., Bayley, J.

(9) Rex v. Gammon, 5 C. & P. 321 (24 E. C. L. R.). The prisoner was executed. (r) Reg. v. M.Rue, 8 C. & P. 641 (34 E. C. L. R.).

(8) Supra, note (q).

[ocr errors]

(1) Reg v. Jordan, 9 C. & P. 118 (38 E. C. L. R.). See also Reg. v. Allen, 9 C. & P. 31. (u) In Rex v. Gammon, supra, note (g).

(v) Rex v. Russen, supra, note (p).

(w) Reg. v. Hughes, 9 C. & P. 752 (38 E. C. L. R.); 2 M. C. C. R. 190.

(x) 12 Rep. 37; Sum. 117; Stamf. 44; 1 Hawk. P. C. c. 4, s. 2, c. 41, s. 3, that the emissio seminis is necessary; 1 Hale 628, contra.

(y) Rex v. Duffin, O. B. 1721, or 1722, Baron Price's MS.; 1 East P. C. c. 10, s. 3, pp. 437, 438. The judges thus differing in opinion, it was proposed to discharge the special verdict, and indict the party for a misdemeanor.

1

adopted the doctrine of the proof of emission being necessary;(z) but that great crown lawyer, Mr. J. Foster, held otherwise, upon a similar occasion, (a) as did Clive, J., upon another trial a few years afterwards.(b) 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 had his will of her, and did not leave her till he chose it himself, they should find him guilty, though an *914] 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. (c) 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 (d) 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.(e)

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(f) held, that the offence was complete by penetration only; but seven of them (g) held both emission and penetration to be necessary: they thought, however, that the fact should be left to the jury. One Judge was absent;(h) and Lord Mansfield only stated, that a great majority seemed to be of opinion 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.(?)

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.(k)

Upon the authority of these cases it seems, therefore, that at one time the offence would not have been 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 honor, the pride of virtue, *915] which nature, in order to render the *sex amiable, has implanted in the female heart, is violated beyond redempton; and the injurious consequences to society are, in every respect complete.()1

(z) Rex v. Cave, O. B. 1747, Serj. Forster's MS.; 1 East P. C. c. 10, s. 3, p. 438. (a) 1 East P. C. Ibid.

(b) Rex v. Bloomfield, Thetford, 1758, Serj. Forster's MS.; 1 East P. C. Ibid.

(c) Rex v. Sheridan, O. B., 8 Geo. 3, 2 MS.; Sum. 333; 1 East P. C c. 10, s. 3, p. 438. (d) Rex v. Russen, ante, note (p), p. 912.

(e) 1 East P. C. c. 10, s. 3, p. 439.

(f) Lord Loughborough, Buller, J. (who tried the prisoner), and Heath, J.

(g) Skynner, Ld. C. B., Gould, Willes, Ashhurst, and Nares, Justices, and Eyre and Hotham, Barons.

(h) Perryn, B.

(i) Rex v. Hill, 1781, MS., Gould and Buller, Justices; 1 East P. C. c. 10, s. 3, pp. 439, (k) Rex v. Parker, Hil. T. 1812, MS., Bayley, J.

440.

(1) 1 East P. C. c. 10, s. 3, pp. 436, 437; Fost. 274.

1 Penetration alone necessary: Pennsylvania v. Sullivan, Addis. 143; Comm. v. Thomas

1 Virg. Cases 307; State v. Le Blanc, 3 Brevard 339.

Supposing, however, that emission were necessary, it seems that penetration was prima facie evidence of it, unless the contrary appeared probable from the circumstances (m) 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 (n) 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 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 (0)

If something occurred to create an alarm to the party while he was perpetrating the offence, it was left to the jury to say whether he left the body re infectâ 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.(p)

as

[*916

Holroyd, J., is reported to have told the jury in the preceding case, "the law requires that in order to consummate the crime of rape, there must not only be a penetration, but likewise what is called an emission of semen. But, although the woman may not perceive the emission, the crime may nevertheless be complete, *where the time is fully sufficient, and there is no interruption, or other circumstance, to raise a contrary presumption. Emission in fact be may presumed, unless where the probability is to the contrary; and the jury may be left to say whether the party left the body re infectû, by reason of a disturbance, or because his purpose was completed. If a person in actu coitûs be alarmed by the sudden appearance of a third person, and if his withdrawing from the body of the female be contemporaneous with such alarm, it is for the jury to say, whether his withdrawing was in consequence of the alarm, or because he had completed his purpose by emission."(q)

But by the 24 & 25 Vict. c. 100, s. 63, "Whenever upon the trial for any offence punishable under this Act, it may be necessary to prove carnal knowledge, it shall not be necessary to prove the actual emission of seed in order to constitute a carnal knowledge, but the carnal knowledge shall be deemed complete upon proof of penetration only."(r)

(m) The majority of the Judges in Hill's case, ante, note (i), thought the question of emission was a fact for the jury; and see the opinion of Bathurst, J., ante, p. 913, and see 1 East P. C. c. 10, s. 3, p. 449.

(n) Rex v. Hormwood, Winchester Spr. Ass. 1787; 1 East P. C. c. 10, s. 3, p. 440. The indictment was for an assault with intent to ravish; and the learned Judge ordered the defendant to be acquitted of that charge, upon the evidence appearing to amount to proof of an actual rape.

(0) Rex v. Flemming, 2 Leach 854.

(p) Rex v. Burrows, MS., Bayley, J., R. &. R. 519.

(9) Burrows' case, 1 Lew. 288.

(r) This clause is taken from the 9 Geo. 4, c. 31, s. 18; and 10 Geo. 4, c. 34, s. 21 (I.).

There was much discrepancy of opinion whether the effect of the clause in the 9 Geo. 4, c. 31, from which the preceding clause was taken, was to alter the crime of rape, or merely the mode of proving that crime. In the earlier cases it was held to have made no difference in the crime. Thus, where a prisoner was indicted for a rape, and it appeared that he was caught in the commission of the offence by a person, who came to the room-door in which he was, but the prosecutrix swore that he did not immediately desist; Park, J. A. J., said, "Notwithstanding the new statute, I should still say, that if it could be shown that a party desisted before he had completed his purpose, it was not a rape; I cannot conceive in my own mind that the mere fact of penetration is sufficient to constitute the offence; but here he did not immediately desist."(s) So in a similar case where the prosecutrix proved penetration clearly, but stated that she did not feel anything come from the prisoner; Taunton, J.. said, "In order to complete the offence it is necessary that he should have had carnal knowledge of her, and that all which constitutes carnal knowledge should have happened. Though the enactment of the statute is such as has been stated, still the jury must be satisfied from the circumstances that emission took place It is not necessary specifically to prove it, but the circumstances must be such as infer that that fact, and everything else essential to carnal knowledge, took place. The statute did not intend to make less necessary to complete the offence than before, but merely to prevent the necessity of the indecent exposure resulting from the minute inquiries which usually took place. The jury, therefore, must be satisfied that emission occurred before they can convict." (t) So also in a similar case, where the prosecutrix proved penetration, and that her clothes were wet, Alderson, B., thus addressed the jury: "You must be satisfied that the prisoner penetrated her private parts with his; if you are satisfied of that, I shall submit to

your consideration another question; according to law it is established, *917] beyond all doubt, that on proof of penetration, a jury may infer the completion of the offence; the offence still consisting of penetration and emission; but doubt has arisen upon a late Act of Parliament, whether when no emission has taken place, the offence is complete by penetration only. I have no doubt, however, that it is for you, if you are of opinion that there has been penetration, to presume emission, unless the contrary is proved; and it lies on the prisoner to show that emission did not take place. If you are satisfied of penetration, but that no emission did take place, I will reserve the question for the Judges; but if you are convinced of penetration, and in doubt or ignorance whether emission took place, I am clear you ought to find the prisoner guilty."(u)

But on a similar indictment, where there was evidence of penetration, but no evidence of emission, Hullock, B., said (in summing up), "If you believe that the prisoner's parts were within the person of the prosecutrix, although there might be no emission, and although they were not withdrawn merely because his lust was satisfied, still the prisoner is equally guilty as if there had been emission, and he had been satisfied; for, as the law now stands, penetration is all that is necessary to be proved to make out the offence." (v) And where on an indictment for abusing a child under the age of ten years; in consequence of Rex v. Russell,(w) and Coulthart's case,(x) Littledale, J., left the question of penetration and also of emission to the jury, and desired them in case they should be of opinion that penetration had taken place, but were uncertain whether emission had taken place, or not, they should say so, and the jury found the prisoner guilty, and said they were of opinion that penetration took place, but that no emission took place. Upon a case reserved, the Judges were unanimously of opinion that the conviction was right.(y.) So, where, upon an indictment for sodomy, the prosecutor proved circumstances that were strong to show penetration, and distinctly proved emission, but not during

(8) Rex v. Thomas Baldwin, Worcester Sum. Ass. 1830, MSS. C. S. G. (t) Rex v. Russell, 1 M. & Rob. 122. See the Reporter's note there.

(u) Coulthart's case, 1 Lew. 291. Verdict, not guilty.

(v) Rex v. Jennings, 4 C. & P. 249 (19 E. C. L. R.); 1 Lew. 290.

(w) Supra, note (1).

(x) Supra, note (u).

(y) Rex v. Cox, R. & M. C. C. R. 337; 5 C. & P. 297 (24 E. C. L. R.), E. T. 1832, Taun ton, J., and Gurney, B., absentibus. The case was not argued before the Judges.

penetration, the prisoner having been interrupted: Gaselee, J., left it to the jury to say whether there had been penetration, stating that, if so, the crime was complete under the new Act; and the jury were of opinion that there had been, and found the prisoner guilty, and sentence was passed, but in consequence of Rex v. Jacobs,(z) and Rex v. Russell, (a) the case was reserved for the opinion of the Judges, who held unanimously that the conviction was right. (b) So in the case of bestiality, where the prisoner being interrupted, withdrew from the animal; Park, J. A. J., said, "In the former state of the law, the prisoner would have been entitled to an acquittal, but, as the law is now, if there was penetration, the capital offence is *completed, although there has been no emission." (c) Where on a trial for rape, the prosecutrix admitted that the prisoner had penetrated but a little [*918 way, and that there was no emission; and it was objected that the direct negative being proved, the case failed, and that the 9 Geo. 4, c. 31, had not altered the character of the offence; Patteson, J., said, "The Judges have distinctly held in Cox's case, (d) that proof of penetration is sufficient, notwithstanding emission be negatived;" and upon its being suggested that Cox's case was not argued, and that doubts as to the propriety of the decision were said to be entertained by two Judges, who were absent, 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 should be further considered.(e) And lastly, where on a trial for rape there was no doubt that there was penetration, but it appeared clear from the admissions of the prosecutrix that the prisoner did not in fact complete his purpose, as she succeeded in extricating herself from him very soon; and it was contended that the evidence showed that the offence was not completed; the words of the indictment were, "did ravish and carnally know," and that must mean, did have his will of her, and satisfy his lust while within her person. The object of the 9 Geo. 4, c. 31, was only to render it unnecessary to prove more than penetration, on account of the woman's possible inability to describe what actually took place. The counsel for the crown, in reply, agreed with the counsel for the prisoner, that the Act was not intended to do more than enable a jury to say that the offence was committed, when there was only proof of penetration; but that it was not intended to dispense with proof of the completion of the offence, when such proof can be given, still less to decide that the offence shall be considered to have been committed in point of law, when the evidence clearly shows that it was not committed in point of fact. Tindal, C. J.: "The 9 Geo. 4, c. 31, s. 18, recites, that upon trials of rape, &c., 'offenders frequently escape by reason of the difficulty of the proof which has been required of the completion of those several crimes.' It was thought that the law was holding itself up to contempt by having those subtle and critical subjects discussed before Judges and juries, and the statute therefore goes on to say, 'For remedy thereof, be it enacted, that it shall not be necessary, in any of those cases, to prove the actual emission of seed, in order to constitute carnal knowledge; but the carnal knowledge shall be deemed complete upon proof of penetration only.' The only question, therefore, for the jury in such a case is, whether the private parts of the man did enter into the person of the woman. It is not necessary to enter into any nice discussion as to how far they entered; however, you must be satisfied that there was actual penetration, and not that it is the case of a person attempting to commit the offence and being disturbed before he had actually penetrated. The prosecutrix may be mistaken as to the extent to which the prisoner had proceeded in the commission of *the offence; if, therefore, you feel any doubt whether (and I can use no [*919 other words than the statute; I am not here to make the law, but only to expound and declare it), if I say, you feel any doubt whether it has been proved

(a) Supra, note (t).

(z) R. & R. 331. post, p. 938. (b) Rex v. Reekspear, R. & M. C. C. R. 342, Taunton, J., and Gurney, B, absentibus. The case was not argued before the Judges, and seems to have been decided at the same time as Rex v. Cox. C. S. G.

(c) Rex v. Cozins, 6 C. & P. 351 (25 E. C. L. R.), Oxford Spr. Ass. 1834.

(d) Supra, note (y).

(e) Brook's case, 2 Lew. 267, York Spr. Ass. 1837. The prisoner was acquitted.

« EelmineJätka »