A Treatise on Criminal Law as Applicable to the Dominion of Canada

her consent was obtained by fraud, and that the prisoner's act did not amount to rape. (a)

Having connection with a woman, under circumstances which induce her to believe that it is her husband, is not a rape. (b) But, in such case, the party is liable to be indicted for an assault. (c)

The meaning of the phraseology in an indictment for rape that the prisoner "violently, and against her will, feloniously did ravish" the prosecutrix, is, that the woman has been quite overcome by force or terror, accompanied with as much resistance on her part as is possible under the circumstances, and so as to make the ravisher see and know that she is really resisting to the uttermost. (d)

Where, on an indictment for rape, the evidence of the prosecutrix shewed that the prisoner, having followed her into the house, and, without her knowledge, bolted the door, succeeded, after she had several times escaped from him, in dragging and throwing her upon the bed, where he had connection with her, she making several attempts to get up, but being too exhausted to do so, the prisoner avowing that he had come on purpose, and, as she was in his power, he would do as he pleased; that she resisted as long as she could, and then, before he had effected his purpose, screamed out, and called to her child, who was outside; being corroborated as to the screams by the child, and by another witness, who heard cries, manifestly those of the prosecutrix; it also appearing that the husband of the prosecutrix had received a letter from her, on the 20th of the same month in which the rape was said to have been committed, which, it was alleged, was on the 17th of that month, stating that the

(a) Reg. v. Barrow, L. R. 1 C. C. R. 156; 38 L. J. (M. C.) 20.

(b) Reg. v. Francis. 13 U. C. Q. B. 116.

prisoner had been at his house, and abused her :-Held that this evidence shewed the woman was quite overcome by force or terror, accompanied with as much resistance on her part as was possible under the circumstances, and so as to have made the ravisher see and know that she really was resisting to the utmost, and sustained the language of the indictment, that the prisoner "violently, and against her will, feloniously did ravish" the prosecutrix. A conviction for rape was therefore upheld. (a)

In this case, the facts, as they appeared in evidence, were left to the jury, who were told that they must be satisfied, before convicting him, that the prisoner had had connection with the prosecutrix, "with force and violence, and against her will," and further, that "some resistance should be made, on the part of the woman, to shew that she really was not a consenting party." The Court, believing that all the substantial facts which should have been submitted to the jury, by way of direction, were submitted to them, held the direction proper. (b)

The prisoner forcibly had carnal knowledge of a girl thirteen years of age, who, from defect of understanding, was incapable of giving consent, or exercising any judg ment in the matter:-Held that he was guilty of rape, and that it was sufficient, in such a case, to prove that the act was done without the girl's consent, though not against her will. (c)

But in the case of rape of an idiot, or lunatic woman, the mere proof of the act of connection will not warrant the case being left to the jury. There must be some evidence that it was without her consent, e. g. that she

(a) Reg. v. Fick, 16 U. C. C. P. 379.

(b) Ib.

was incapable of expressing consent or dissent, or from exercising any judgment upon the matter, from imbecility of mind, or defect of understanding, and if she gave her consent, from animal instinct or passion, it would not be a rape. (a)

Where the charge was of assault, with intent to ravish, and the woman was insane, and there was no evidence as to her general character for chastity, or anything to raise a presumption that she would not consent, and the jury were directed that, if she had no moral perception of right and wrong, and her acts were not controlled by the will, she was not capable of giving consent, and the yielding on her part, the prisoner knowing her state, was not an act done with her will. The jury having convicted, saying she was insane, and consented, it was held that the conviction could not be sustained; for in the principal offence consent, from mere animal instinct, is a defence, even in the case of an idiot, and it is equally so in the lesser charge of assault, with intent to commit rape, particularly as there is no Act of Parliament declaring the fact of criminal connection with an idiot or lunatic to be an offence, as in the case of children of tender years. (b)

A child, under ten years of age, cannot give consent to any criminal intercourse, so as to deprive that intercourse of criminality, under the 32 & 33 Vic., c. 20, s. 51. (c) And a person may be convicted of attempting to have carnal knowledge of such child, even though she consents to the acts done. (d) But her consent will render the attempt no assault. (e)

(a) Reg. v. Connolly, supra, 317. (b) Ib.

(e) Ib. 320, per Hagarty, J.

(d) Reg. v. Beale, L. R. 1 C. C. R. 10; 35 L. J. (M. C.) 60.

(e) Reg. v. Cockburn, 3 Cox, 543; Reg. v. Connolly, supra, 320, per Hagarty, J.

In the case of a child under ten years of age, if the indictment be for the misdemeanor of attempting to commit the statutable felony, consent becomes unimportant; and in such case, on an indictment for the principal offence, there cannot be a conviction for the assault, if there be consent to what was done, nor for an assault independently charged. (a)

In the case of girls from ten to twelve, on a charge of assault, with intent to carnally know, or indecent assault, or common assault, consent is a defence; but the prisoner may be indicted for attempting to commit the statutable misdemeanor, not charging an assault, in which case it seems consent is a defence. The proper course is to indict for attempt to commit the statutable misdemeanor, for every attempt to commit a misdemeanor is a misdemeanor, and where the essence of the offence charged is an assault, the attempt, though a misdemeanor, is no assault. (b)

By the 32 & 33 Vic., c. 20, s. 65, it is unnecessary, with respect to these offences, to prove the actual emission of seed, in order to constitute a carnal knowledge; but the carnal knowledge shall be deemed complete on proof of any degree of penetration only.

In a case of rape, a statement made by the prosecutrix to her husband and another person, that the defendant ravished her, is not admissible, so far as it criminates the prisoner. (c)

The 32 & 33 Vic., c. 20, s. 56, provides that whosoever unlawfully takes, or causes to be taken, any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or

(a) Reg. v. Connolly, 26 U. C. Q. B. 323, per Hagarty, J.

(b) Ib. 323, per Hagarty, J. See also Reg. v. Guthrie, L. R. 1 C. C. R. 241; 39 L. J. (M. C.) 95; Reg. v. Oliver; Bell 287; 30 L. J. (M. C.) 12. (c) Reg. v. Fick, 16 U. C. C. P. 379.

of any other person having the lawful care or charge of her, is guilty of a misdemeanor. A. met a girl in the street going to school and induced her to go with him to a town some miles distant, where he seduced her. They returned together, and he left her where he met her. The girl then went to her home where she lived with her father and mother, having been absent some hours longer than would have been the case if she had not met A. The latter made no enquiry, and did not know who the girl was, or whether she had a father or mother living or not, or that he was taking her out of her father's possession; but he had no reason to, and did not, believe that she was a girl of the town :-Held, that A. was not guilty of having unlawfully taken the girl out of the possession of her father, under the 24 & 25 Vic., c. 100, s. 55, which is analogous to our own Act, for it did not appear that the prisoner knew or had reason to believe that the girl was under the lawful care or charge of her father or mother or any other person. (a)

Assault and Battery.-An assault is an attempt or offer with force and violence to do a corporal hurt to another, and a battery, which is the attempt executed, includes an assault. (b) An assault is described as a violent kind of injury offered to a man's person of a more large extent than battery, for it may be committed by offering a blow. (c)

Whether the act shall amount to an assault must in every case be collected from the intention. If a person

interfere in a fight to separate the combatants, this not amount to an assault. (d) So to lay one's hand gently on another whom an officer has a warrant to arrest, and

(a) Reg. v. Hibbert, L. R. 1 C. C. R. 184; 38 L. J. (M. C.) 61.

(b) Reg. v. Shaw, 23 U. C. Q. B. 619, per Draper, C. J.

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