CHAPTER XXVIII.

PUNISHMENT OF ASSAULTS ON SUMMARY CONVICTION.

ARTICLE 248.

ASSAULTS PUNISHABLE ON SUMMARY CONVICTION.

EVERY person who commits an assault may, subject to the provisions in this chapter contained, be punished in respect thereof upon summary conviction before two justices of the peace.

ARTICLE 249.

ASSAULTS WHICH OUGHT NOT TO BE PUNISHED ON SUMMARY

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CONVICTION.

In case the justices find the assault or battery complained of to have been accompanied by any attempt to commit felony, or are of opinion that the case is from any other circumstance a fit subject for a prosecution by indictment, they must abstain from any adjudication thereupon and deal with the case in all respects in the same manner as if they had no authority finally to hear and determine the

same.

Justices have no power under the provisions of this chapter to hear and determine any case of assault or battery in which any question arises as to the title to any lands, tenements, or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy or insolvency, or any execution under the process of any Court of justice.

ARTICLE 250.

AGGRAVATED ASSAULTS.

2 If the assault or battery is, in the opinion of the justices

124 & 25 Vict. c. 100, s. 46.

2 Ibid. s. 43.

of an aggravated nature, and if the person assaulted is a female, or a male whose age does not in the opinion of the justices exceed fourteen years,' or if the person assaulted is a constable in the execution of his duty, the offender may be fined any sum not exceeding £20, 2 together with costs, and in default of payment may be imprisoned with or without hard labour for a maximum period of six months, unless such fine is sooner paid; or he may be imprisoned without the option of a fine, and 2 he may in any case be bound to keep the peace and be of good behaviour for six months. from the expiration of his sentence if the justices think fit.

In the case of an assault on a constable in the execution of his duty the offender may, if he has been convicted of a similar assault within two years, be imprisoned with or without hard labour for a maximum term of nine months.

3 If any person assaults or resists a borough constable [appointed under the Municipal Corporation Act, 1881] in the execution of his duty, or aids or incites any person so to assault or resist, he may for every such offence be fined on summary conviction a sum not exceeding five pounds.

This provision does not prevent any prosecution by way of indictment against any such offender, except that he cannot be prosecuted both by indictment and in a summary manner for the same offence.

ARTICLE 251.

ASSAULTS PUNISHABLE WITH THREE MONTHS IMPRISONMENT.

Every one is liable to a maximum punishment of three months hard labour

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(a.) who beats or uses any violence or threat of violence to any person with intent to deter or hinder him from

134 & 35 Vict. c. 112, s. 12.

These words do not apply to the case of an assault on a constable.

344 & 45 Vict. c. 50, s. 195. The object of this enactment is not apparent, as a more severe sentence may be inflicted for a common assault; see 24 & 25 Vict. c. 100, s. 42, Art. 252 below. It can hardly have been the intention of the legislature to repeal by implication the enactments embodied in the earlier part of the present Article, so far as they relate to borough constables.

124 & 25 Vict. c. 100, s. 39.

buying, selling, or otherwise disposing of, or to compel him to buy, sell, or otherwise dispose of, any wheat or other grain, flour, meal, malt, or potatoes, in any market or other place, or beats or uses any such violence or threat to any person having the care or charge of any such thing whilst on the way to or from any city, market town, or other place, with intent to stop the conveyance of the same;

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(b.) 1 or who unlawfully and with force hinders or prevents any seaman, keelman, or caster from working at or exercishis lawful trade, business, or occupation, or beats or uses. any violence to any such person with intent to hinder or prevent him from working at the same.

ing

Provided that no person punished under this Article can be punished for the same offence by virtue of any other law whatsoever.

ARTICLE 252.

PUNISHMENT OF COMMON ASSAULTS ON SUMMARY CONVICTION.

2 Where any person unlawfully assaults or beats any other person, and is convicted thereof upon complaint by or on behalf of the party aggrieved, he is liable to the following consequences:

To be imprisoned with or without hard labour for a maximum term of two months;

or else to be fined any sum not exceeding, together with costs, if ordered, £5, and if such sum is not paid within such term as the convicting justices appoint at the time of the conviction, to be imprisoned, with or without hard labour, for a maximum term of two months.

ARTICLE 253.

CERTIFICATE OF CONVICTION OR ACQUITTAL.

3 When a complaint of assault or battery preferred by or on behalf of the party aggrieved under Articles 250 or 252 124 & 25 Vict. c. 100, s. 40.

2 Ibid. s. 42.

* Ibid. ss. 44, 45. The words in the Act are "for the same cause." In R. v. Morris, L. R. 1 C. C. R. 90 (followed in Masper v. Brown, L. R. 1 C. P. D. 97), it

has been heard upon the merits before justices and they deem the offence not to be proved, or find the assault or battery to have been justified, or so trifling as not to merit any punishment, and accordingly dismiss the complaint, or when the punishment awarded by them has been endured, the defendant is released from all further proceedings for such assault or battery.

1 Upon the dismissal of any such complaint the justices must forthwith make out a certificate of the fact of such dismissal and give it to the party against whom the complaint was dismissed.

was held that these words mean subsequent proceedings for an assault, and that they do not mean to cover subsequent proceeding for the act constituting the assault. It was held in R. v. Morris that if death followed an assault, for which the offender had been punished, he might nevertheless be indicted for manslaughter. In Masper v. Brown it was held that a man who had been fined for an assault on a married woman could not be afterwards sued by her husband for the damage he had sustained by the loss of his wife's services.

124 & 25 Vict. c. 100, s. 44.

CHAPTER XXIX.

1RAPE, ETC.

ARTICLE 254.

DEFINITION OF RAPE.

2 RAPE is the act of having carnal knowledge of a woman without her conscious permission, such permission not being extorted by force or fear of immediate bodily harm; but if such permission is given, the fact that it was obtained by

1 Draft Code, Part X. ss. 207-11.

2 See the cases in the Illustrations, and see 1 Russ. Cr. 858, &c. A late decision, R. v. Flattery (46 L. J. (M.C.) 130), has thrown much uncertainty over the law. The prisoner was convicted of rape for having procured connection with a girl by falsely pretending that the act was necessary for a surgical or medical purpose, "the prosecutrix making but feeble resistance, believing that the prisoner was treating her medically." Two of the judges laid stress upon the resistance as negativing consent to sexual connection, though not to the act done or supposed to be done. The Court, however, almost, though not altogether, overruled the principle said in R. v. Barrow (L. R. 1 C. C. R. 158) to be established by a class of cases (R. v. Jackson, R. & R. 487; R. v. Clarke, Dear. 397; R. v. Saunders, 8 C. & P. 265; R. v. Williams, C. & P. 286) "that where consent is obtained by fraud the act done does not amount to rape." Hardly any of these cases seem to have been cited in the argument, though R. v. Barrow was. In R. v. Flattery, as in R. v. N. Fletcher, the Statute of Westminster 2nd., 13 Edw. 1, c. 34, was referred to as giving a "definition of rape." I do not see how the statute can be treated as defining rape at all. The words are "purveu est que si homme ravist femme, espouse, damoisele, ou autre femme desoremes, par la ou ele ne se est assentue, ne avaunt ne apres eit judgement, &c., e ensement par la ou home ravist femme, &c., a force tut seit ke ele se assente apres." In the Latin version the words are "rapiat ubi nec ante nec post consenserit." This cannot be a definition of rape, because it contains the word "rape." If however it is taken as being a definition, it implies that there may be cases of rape in which the woman consents, for the punishment is confined to cases of rape where there is no consent, before or after. The latter part of the enactment which speaks of consent after the fact appears inapplicable to rape in the modern sense of the word. When the crime is over how can a person consent to it? Had it not been for Coke's comments (2nd Inst. 180, 433, 3rd Inst. 60), I should have thought that the words applied rather to abduction than to what we mean by rape, especially as the statute contains provisions as to the ravishment of wards, in which the word "rapuit " is used, but I cannot think that the legislature intended to lay down any definition at all. Their language implies that the crime was then well known, and so does Coke's comment. The Act was repealed by 9 Geo. 4, c. 31, s. 1.