It is true rape is a most detestable crime, and therefore ought severely and impartially to be punished with death, but it must be remembered that it is 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, 634.

Upon an indictment under section 267, the jury may find the prisoner guilty of an attempt to commit rape under s. 268; R. v. Hapgood, 11 Cox, 471; or may find a verdict of common assault, or indecent assault.

Under s. 268, for an assault with intent to commit rape, the indictment may be as follows: in and upon one A. B., a woman (or girl), unlawfully did make an assault, with intent her, the said A. B., violently and unlawfully without her consent, to ravish and carnally know. (Add a count for a common assault), though it is not necessary.

If, upon trial for this offence, the offence under s. 267 be proved the defendant is not therefore entitled to an acquittal, s. 712, post.

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; also, that in order to convict of assault with intent to commit rape the jury must be satisfied, not only that the prisoner intended to gratify his passion on the person of the prosecutrix, but that he intended to do so at all events, and notwithstanding any resistance on her part: R. v. Lloyd, 7 C. & P. 318.

When a man is charged with rape all that the woman said to other persons in his absence shortly after the alleged offence is admissible in evidence: R. v. Wood, 14 Cox, 46; see R. v. Little, 15 Cox, 319.

In R. v. Gisson, 2 C. & K. 781, it was held that an acquittal on an indictment for a rape could not be successfully pleaded to a subsequent indictment for an assault

with intent to commit a rape, because a verdict for the attempt to commit the offence could not be received on an indictment charging the offence itself. But that case is not now to be followed. The case of R. v. Dungey, 4 F. & F. 99, is a clear authority that upon a trial for rape the defendant may be found guilty of an attempt to commit it. In fact there can now be no doubt upon this; s. 711, post, is clear. See cases cited under that section.

An assault with intent to commit rape is very different from an assault with intent to have an improper connection. The former is with intent to have connection by force and against the will of the woman: R. v. Stanton, 1 C. & K. 415; R. v. Wright, 4 F. & F. 967; R. v. Rudland, 4 F. & F. 495; R. v. Dungey, 4 F. & F. 99.

An indictment for an attempt to commit rape is always in the form of an assault with intent to commit rape, as in R. v. Riley, 16 Cox, 191, for instance. And in R. v. Dungey, ubi supra, the judge charged the jury that they could, on an indictment for rape, find the prisoner guilty of an assault with intent to commit rape.

In this Code, however, a difference is made between an attempt to commit an offence and an assault with intent to commit it; ss. 175-260.

In a case of John v. R., in British Columbia, upon a writ of error, the court held that, upon an indictment for rape, the prisoner had been lawfully convicted of an assault. with intent to commit rape. That decision was upheld by the Supreme Court: John v. R., 15 S. C. R. 384.

In R. v. Wright, 4 F. & F. 967, the prisoner was indicted for rape and for assault with intent to commit rape. Under ss. 626 and 713, post, there is not the least room to doubt that this can now be done, whatever doubts may have existed in that case.

In a case of rape the counsel for the prosecution should not tell the jury that to acquit the prisoner is to find the

CRIM. LAW-18

woman guilty of perjury: R. v. Rudland, and R. v. Puddick, 4 F. & F. 495, 497.

On trial for rape evidence was that of a woman alone which, in view of previous admissions and the circumstances, was unsatisfactory: Held, evidence was properly submitted to jury, but court directed that attention of Executive should be called to the case: R. v. Lloyd, 19 O. R. 352.

What is sufficient evidence? R. v. Bedere, 21 O. R. 189.

CARNALLY KNOWING A GIRL UNDER FOURTEEN

269. Every one is guilty of an indictable offence and liable to imprisonment for life, and to be whipped, who carnally knows any girl under the age of fourteen years, not being his wife, whether he believes her to be of or above that age or not. 53 V. c. 37, s. 12 (Amended). 48-49 V. c. 69, s. 4 (Imp.).

The repealed section enacted a minimum punishment of five years; see remarks and form of indictment under next section.

The words in italics are not in the English Act. They are unnecessary.. The girl there must be under thirteen. Proof of penetration is sufficient: R. v. Marsden, 17 Cox,

297.

ATTEMPT.

270. Every one who attempts to have unlawful carnal knowledge of any girl under the age of fourteen years is guilty of an indictable offence and liable to two years' imprisonment, and to be whipped. 53 V. c. 37, s. 12. 48-49 V. c. 69, s. 4 (Imp.).

See s. 685 as to evidence of young children in trials under these two sections. This section 270 has no other effect but to reduce the punishment, which, without it, would be seven years' imprisonment, s. 528.

Indictment under s. 269.—

in and upon one A. N., of a girl under the age of fourteen years, to wit, of the age twelve years, unlawfully did make an assault, and her, the said A. N., then and there did unlawfully and carnally know.

The evidence is the same as in rape, with the exception that the consent or non-consent of the girl is immaterial independently of the enactment contained in s. 261. See R. v. Brice, 7 Man. L. R. 627.

Upon the trial of an indictment under these clauses the jury may, under s. 713, find the defendant guilty of a common assault, or an indecent assault: R. v. Read, 1 Den. 377; R. v. Connolly, 26 U. C. Q. B. 317; R. v. Roadley, 14 Cox, 463; even if the girl assented: s. 261, ante.

Under s. 711, post, the defendant may be convicted, if indicted under s. 269, of an attempt to commit the offence charged, if the evidence warrants it: R. v. Ryland, 11 Cox, 101; R. v. Catherall, 13 Cox, 109; but a boy under fourteen cannot be convicted of such attempt: R. v. Waite, 17 Cox,

554.

An indictment for rape still lies for ravishing a girl under fourteen: R. v. Dicken, 14 Cox, 8; R. v. Ratcliffe, 15 Cox, 127.

Indictment that prisoner in and upon one J., a girl under fourteen, feloniously did make an assault, and her, the said J., then and there feloniously did unlawfully and carnally know and abuse, etc; evidence of consent; general verdict of guilty affirmed: R. v. Chisholm, Jacobs' Case, 7 Man. L. R. 613.

KILLING CHILD IN HIS MOTHER'S WOMB. (New).

271. Every one is guilty of an indictable offence and liable to imprisonment for life who causes the death of any child which has not become a human being, in such a manner that he would have been guilty of murder if such child had been born.

2. No one is guilty of an offence who, by means which he in good faith considers necessary for the preservation of the life of the mother of the child, causes the death of any such child before or during its birth.

See 88. 219 & 239 ante: R. v. West, 2 C. & K. 784; R. v. Handley, 13 Cox, 79. This is a new offence. No verdict for concealment of birth can be given upon an indictment under this section, in the absence of an express enactment to allow it.

PROCURING ABORTION.

272. Every one is guilty of an indictable offence and liable to imprisonment for life who, with intent to procure the miscarriage of any woman, whether she is or is not with child, unlawfully administers to her or causes to be taken by her any drug or other noxious thing, or unlawfully uses any

instrument or other means whatsoever with the like intent. R. S. C. c. 162, s. 47. 24-25 V. c. 100, s. 58 (Imp.).

WOMAN PROCURING HER OWN MISCARRIAGE.

273 Every woman is guilty of an indictable offence and liable to seven years' imprisonment who, whether with child or not, unlawfully administers to herself or permits to be administered to her any drug or other noxious thing, or unlawfully uses on herself or permits to be used on her any instrument or other means whatsoever with intent to procure miscarriage. R. S. C. c. 162, s. 47 (Amended). 24-25 V. c. 100, s. 58 (Imp.).

The words in italics are new.

SUPPLYING MEANS OF PROCURING ABORTION.

274. Every one is guilty of an indictable offence and liable to two years' imprisonment who unlawfully supplies or procures any drug or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she is or is not with child. R. S. C. c. 162, s. 48. 24-25 V. c. 100, s. 59 (Imp.).

Section 273, as it reads, is an absurdity. It ought to read as in the English Act, and s. 47, c. 162, R. S. C., "Every woman being with child."

Indictment for woman administering poison to herself, with intent or, etc. that C. D., late of

on

at

and being then with child, with intent

to procure her own miscarriage, did unlawfully administer to herself one drachm of a certain poison (or noxious thing) called (or did unlawfully use a certain instrument

or means) to wit.

Indictment for administering poison to a woman, with intent to procure abortion.

that C. D. on

unlawfully did administer to (or cause to be taken by) one S. P. one ounce weight of a certain poison, called

(or noxious thing called

) with intent then and thereby to cause the miscarriage of the said S. P. Indictment for using instrument with the like intent.

unlawfully did use a certain instrument called a upon the person of one S. P., with intent then and thereby to cause the miscarriage of the said S. P.

In order to constitute an offence under s. 273, as it was in the repealed clause, the woman must be with child,