same opinion. R. v. Robins, 1 Car. & K. 456. S. P. R. Biswell, 11 Shaw's J. P. 582.

v.

2. That the girl was then unmarried, and under sixteen years of age. A variance between the age stated and that proved is not material, provided the age proved be under sixteen. Perhaps it should be ten years at least; for otherwise it might be deemed child stealing (see ante, p. 299), which is a felony.

3. That when she was taken, she was in the possession of her father or mother, or of some person having the lawful care or charge of her, as stated in the indictment; and that she was taken against the will of the person in whose possession she is stated to be. And where the consent of the parents was obtained by misrepresentation and fraud, the party having at the time an intent to debauch the girl, Gurney, B., held it to be a case within the statute. R. v. Hopkins, 1 Car. & M. 254. It may be doubted, perhaps, whether the taking such a young girl out of the possession of her schoolmistress, with the consent of the schoolmistress, although against the will of her father and mother, be an offence within this Act.

36. Procuring the Defilement of a Girl under Age.

Indictment.

The jurors for our Lady the Queen, upon their oath present, that A. B., on the

day of

to wit. in the year of our Lord by falsely pretending and representing unto one C. D., that [here set out the false pretences or representations; the words in the statute are "false pretences, false representations, or other fraudulent means"], did procure the said C. D. to have illicit carnal connexion with a certain man named [or to the jurors aforesaid unknown,] she, the said C. D., at the time of such procurement, being then a woman [or girl] under the age of twentyone years, to wit, of the age of : Whereas, in truth and in fact [negativing the pretences or representations] : against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [The false pretences or representations, it should seem, must be specially negatived, in the same manner as in obtaining money or goods under false pretences. See post, tit. "Faise Pretences."

Misdemeanor; imprisonment with hard labour for not more than two years. 12 & 13 Vict. c. 76, s. 1. Costs to be allowed, as in felony. Id. ss. 2, 3.

Evidence.

To maintain this indictment, it is necessary to prove

1. The pretences or representations made by the prisoner to C. D.

2. That in consequence of these pretences or representations, or other fraudulent means if stated, the defendant procured C. D. to have carnal connexion with the man mentioned in the indictment; and that she was then under twenty-one years of age.

3. That the pretences or representations were false, or that the other means stated were fraudulent.

See R. v. Mears and Chalk, 20 Law J. 59, m, where the prisoners were indicted for an attempt to commit this offence, and for a conspiracy to commit it; and the count for the conspiracy was holden good.

to wit.

37. Rape.

'Indictment.

The jurors for our Lady the Queen, upon their Soath present, that A. B., on the

day of in the year of our Lord —, in and upon one C. D., feloniously and violently did make an assault, and her the said C. D. then violently and against her will, feloniously did ravish and carnally know: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity.

Felony, transportation for life, 4 & 5 Vict. c. 56, s. 3. Persons present, aiding and abetting, are equally guilty; R. v. Crisham, Car. & M. 187; and are punishable in like manner. As to costs, see ante, p. 186; costs of apprehension, see ante, p. 189.

Upon this indictment, the jury may find the prisoner not guilty of the felony, but guilty of the attempt to commit it; and thereupon he shall have judgment, as if he had been indicted for the attempt, and had been found guilty; 14 & 15 Vict. c. 100, s. 9; namely, imprisonment, with or without hard labour, for not more than two years, and the court may fine the offender, and make him find sureties for the peace. 9 G. 4, c. 31, s. 25.

Rape is the having and against her will.

Evidence.

carnal knowledge of a woman, by force 1 Hawk. c. 41, s. 2.

To maintain this indictment, the prosecutrix must prove

1. Penetration. Formerly it was necessary to prove emission in the body, also. But by stat. 9 G. 4, c. 31, s. 18, (after assigning the punishment of rape, unnatural offences, carnally knowing and abusing girls under the age of ten, and between ten and twelve), and reciting "whereas upon trials for the crimes of buggery and rape, and of carnally abusing girls under the respective ages herein before mentioned, offenders frequently escape by reason of the difficulty of the proof which has been required of the completion of these several crimes: " for remedy thereof it is enacted "that it shall not be necessary, in any of these cases, to prove the actual emission of seed, in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete, upon proof of penetration only." So that now, evidence of the penetration alone is sufficient, even although the fact of emission be negatived by the evidence. R. v. Cox, 5 Car. & P. 297. R. v. Gammon, 5 Id. 321. R. v. Allen, 9 Id. 31. And any, the slightest, penetration,-proof of any part of the virile member of the prisoner having been between the labia of the pudendum of the prosecutrix, will be sufficient. R. v. Lines, per Parke, B., 1 Car. & K. 393. In one case, indeed, Gurney, B., said, that if the penetration were not sufficient to rupture the hymen, it would not be sufficient to constitute the offence. But this has since been ruled otherwise, and that rupturing the hymen is not at all necessary to the proof of penetration. R. v. Hughes, 9 Car. & P. 752. R. v. Jordan et al., 9 Id. 118. And see R. v. McRue, 8 Car. & P. 641.

It may be necessary to mention, that a boy under fourteen years of age, cannot, in contemplation of law, be guilty of a rape, or of an assault with intent to commit it; R. v. Philips, 8 Car. & P. 736; but he may be convicted, as for an assault; R. v. Brimilow, 9 Car. & P. 366; or he may be convicted as being present, aiding and abetting another in the commission of the rape. R. v. Groombridge, 7 Car. & P. 582.

2. That it was done by force and against her will. Where a man, by fraud, went to bed to a married woman, and she, believing him to be her husband, allowed him to have connexion with her: this was holden not to be a rape; R. v. Saunders, 8 Car. & P. 265; and the same, where in the act the wife discovered it was not her husband, and made what resistance she could to prevent its completion. R. v. Mc Williams, 8 Car. & P. 286. But where a man gave a woman liquor, which had the effect of rendering her insensible, and he thus took advantage of her situation, and had connexion with her during her insensibility: the judges held this to be a rape, although the jury found that the prisoner had given her

the liquor for the purpose of exciting her, and not for the purpose of rendering her insensible and having connexion with her in that state. R. v. Camplin, 1 Car. § K. 746. So, where a man had connexion with a woman, whilst she was labouring under delirium, which rendered her insensible to his act; it was holden to be rape. R. v. Chater, 13 Shaw's J. P., 766.

In most cases all this has to be proved by the prosecutrix herself, without any other evidence to corroborate her. Lord Hale says, in reference to this: It is true, that rape is a most detestable crime, and therefore severely punished; but it must be remembered that it is an accusation easily made, but difficult to be disproved by the party accused, be he ever so innocent; and therefore, though the party ravished be a competent witness, yet the credibility of her testimony must be left to the jury, upon the circumstances of fact that concur with that testimony:-if the witness be of good fame,—if she presently discovered the offence, and made pursuit after the offender,-if she showed circumstances and signs of the injury, whereof many are of that nature that only women are proper examiners, if the place where the fact was done were remote from inhabitants or passengers,-if the offender fled for it,— these and the like are concurring circumstances which give greater probability to her evidence. On the other hand, if she be of evil fame, and stand unsupported by other evidence, -if she conceal the case for any considerable time after she had an opportunity to complain, except from fear,--if the place where the fact is supposed to have been committed were near to persons by whom it was probable she might have been heard, and yet she made no outcry,-if she gave wrong descriptions of the place,-if she fixed on a place where it was improbable for the man to have access to her, by reason of his being in a different place or company about that time,— these and the like circumstances afford a strong, though not conclusive, presumption, that her testimony is feigned. 1 Hale, 633, 635, and see 1 Hawk. c. 41, s. 9. Where the prosecutrix said, that on her way home after the offence was committed, she complained to Mrs. P., and Mrs. P. was called to confirm her, and was asked whether she had made a complaint to her, and was desired to answer "yes" or "no," without stating what the complaint was, and she said "yes;" she was then asked whether the prosecutrix mentioned the name of any particular person, and Cresswell, J., desired her to answer yes or no, without mentioning the name, and she answered "yes;" she was then asked what name was mentioned, but Cresswell, J., held that that question ought not to be asked. R. v. Osborne, Car. & M. 622. Where the prosecutrix, after giving evidence of the offence, stated that she immediately told her mistress, Mrs. S., and showed her some blood at the place where the rape

was committed, also that her linen was bloody, and had been washed by Mrs. C.; S. and C. being both in court, Pollock, C.B., directed that they should be called as witnesses on the part of the prosecution; and being called, they gave a direct contradiction to the story of the prosecutrix as respected the complaint, the blood, and the state of the clothes,-and the defendant was accordingly acquitted. R. v. Stroner, 1 Car. & K. 650.

It is no defence to show that the woman at last yielded to the violence, if she were compelled to it by fear of death or duress. 1 Hawk. c. 41, s. 6. Nor is it any defence, that she consented after the fact. Id. s. 7. Nor is it any defence that she is a common strumpet; for she is still under the protection of the law, and cannot be forced. Id. s. 7. But in the latter case, though in itself no defence, it is most material for the defendant, and it is permitted to him to show the fact, to throw a doubt upon her statement that the connexion was had against her will. And the character, therefore, of the prosecutrix for chastity, may be impeached by general testimony; but the defendant cannot examine as to particular facts. Per Holroyd, J., in R. v. Clarke, 2 Starke, N. P. C. 241. Where the prisoner's counsel asked the prosecutrix, whether she had not before had connexion with other men, and whether she had not before had connexion with a particular person, Wood, B., held that she was not bound to answer the questions, as tending to criminate and disgrace her; it was then proposed to prove that she had been caught in bed with a young man about a year before, and it was proposed to call the young man to prove his having had connexion with her; but Wood, B., would not allow of it, as it was evidence, not of general character, but of particular facts: and the judges afterwards held the decision to be right upon both points. R. v. Hodgson, R. & Ry. 211. In R. v. Barker, (3 Car. & P. 389), however, Park, J., after consulting with J. Parke, J., allowed the defendant's counsel to ask the prosecutrix, whether, since the alleged rape, she had not walked the High street at Oxford,-" Were you not on Friday last walking the High street at Oxford, to look out for men?"-"Were you not on Friday last walking the High street at Oxford, with a woman reputed to be a common prostitute?"

Principals in the second degree.] All persons present, aiding, assisting, or encouraging a man to commit a rape, may be indicted as principals in the second degree, whether they be men or women. 1 Hawk. c. 41, s. 10. Even a boy under fourteen years of age, who, we have seen (ante, p. 305), cannot be a principal in the first degree, may be indicted as being present aiding and abetting another to commit the offence. Hale, 620. See as to principals in the second degree generally, ante, p. 11.