an indictment on the 43 that the mix In the same case, witnesses having been called on behalf of the It was not neprisoner to prove that the shrub he used was not savin, the counsel cessary upon for the prosecution insisted that he might, notwithstanding, be found guilty upon the last count of the indictment, which charged Geo. 3, c. 58, that he administered a large quantity "of a certain mixture, to the s. 2, to prove jurors unknown, then and there being a noxious and destructive ture was thing." The prisoner's counsel objected that, unless the shrub noxious or was savin, there was no evidence that the mixture was "noxious destructive. and destructive." Lawrence, J., held, that in an indictment on this clause of the statute, it was improper to introduce these words; and that though they had been introduced, it was not necessary to prove them. And he further said, "it is immaterial whether the shrub was savin or not, or whether or not it was capable of procuring abortion, or even whether the woman was actually with child. If the prisoner believed, at the time, that it would procure abortion, and administered it with that intent, the case is within the statute, and he is guilty of the offence laid to his charge." (i) should be with child. But it has since been held, on the 43 Geo. 3, c. 58, s. 2, that un- But it was less the woman were with child, the offence was not committed, necessary that although the prisoner thought she was with child, and administered the woman the drug with intent to destroy the child. The prisoner was indicted for administering savin to a female, with intent to procure her miscarriage. It appeared that he had been connected with her, and gave her a bottle of some liquid to take, saying, he gave it her in order, if she was in the family way, to destroy the little one. The female was not, nor ever had been, pregnant: and, upon a case reserved, the judges held, that the 43 Geo. 3, c. 58, did not apply where it appeared negatively that the woman was not with child. (j) of bread merely with intent to procure abortion, it is sufficient." It is not stated upon which branch of the section this indictment was framed; if upon the latter, which used the words "any medicine or other thing;" perhaps the dictum was right. But it should seem that neither this dictum, nor that of Mr. J. Lawrence, in Rex v. Phillips, apply to the new act, which uses the words" any poison or other noxious thing" only, in the case, of administering, or causing to be taken; and although a doubt has been suggested in a note to Rex v. Coe, as to whether the words "other means" might be applied to other substances than such as are poisonous or noxious; it should seem that the words "other means" cannot be so applied in the new act; first, because they are in an entirely distinct sentence; secondly, because they are governed by the word use, and not by administer; thirdly, because in sound construction "other" refers to the word "instrument," and by "other means" must be understood things of a similar kind to instruments. See Rosc. Cr. Evid. 243. C. S. G. (i) Rex v. Phillips, 3 Campb. 76. The prisoner had previously been tried upon the first section of the statute, for the capital charge, and acquitted. See ante, 672. Upon this second indictment he urged that he VOL. I. had given the young woman an innocent (j) Rex v. Scudder, R. & M. C. C. R. What is an To constitute an administering, or causing to be taken, it is not administering. necessary that there should be a delivery by the hand. Where, therefore, on an indictment for administering poison and causing poison to be taken, it appeared that the prisoner had mixed poison with coffee, and had told her mistress that the coffee was for her, and the mistress took it, and drank some of it; it was held that this was sufficient. (k) A mere delivery to the woman, however, is not sufficient; the poison must be taken into the mouth, and it seems some of it swallowed, to constitute an administering. (1) As it has been held, that a person who puts a deleterious drug into coffee in order that another may take it, is, if it be taken, guilty of an assault, (m) it should seem that if, upon an indictment under the 1 Vict. c. 85, s. 6, the intent were not proved, the prisoner might be convicted of an assault under s. 11 of that act, if the drug were taken by the woman. And so he might if he used any instrument. If, however, the woman consented to what was done, it should seem that he could not be convicted under sec. 11. (n) But if her consent were obtained by fraud it should seem that he might be convicted of an assault. (0) held to have done an act with intent to (k) Rex v. Harley, 4 C. & P. 369, Park, (1) Rex v. Cadman, R. & M. C. C. R. 114. See this case, post, and the note CHAPTER THE FIFTH. OF RAPE, AND THE UNLAWFUL CARNAL KNOWLEDGE OF FEMALE CHILDREN. SECTION. I. Of Rape. RAPE has been defined to be the having unlawful and carnal know- Definition of ledge of a woman, by force, and against her will. (a) rape. This offence has, for many years past, been justly visited with Formerly a capital punishment; but it does not appear to have been regarded capital offence. as equally heinous at all periods of our constitution. Anciently, indeed, it appears to have been treated as a felony, and, consequently, punishable with death; but this was afterwards thought too hard; and, in its stead, another severe but not capital punishment was inflicted by William the Conqueror, namely, castration and loss of eyes, which continued till after Bracton wrote, in the reign of Henry III. (b) The punishment for rape was still further mitigated, in the reign of Edward I., by the statute of Westm. 1, c. 13, which reduced the offence to a trespass, and subjected the party to two years' imprisonment, and a fine at the King's will. This lenity, however, is said to have been productive of terrible consequences; and it was, therefore, found necessary, in about ten years afterwards, and in the same reign, again to make the offence of forcible rape a felony, by the statute Westm. 2, c. 34. The punishment was still further enhanced by the 18 Eliz., c. 7, s. 1. But these statutes were repealed by the late act, 9 Geo. 4, c. 31; sec. 16 of which enacted, "that every person convicted of the crime of rape shall suffer death as a felon." (c) nishable with death, but But now by the 4 & 5 Vict. c. 56, s. 3, reciting that Rape, &c., by the 9 Geo. 4, c. 31, "it was amongst other things enacted, not to be puthat every person convicted of the crime of rape should suffer death as a felon, and that if any person should unlawfully and transportation carnally know and abuse any girl under the age of ten years, for life. (a) 1 Hawk. P. C. c. 41, s. 2. 1 Hale, 627, 628. Co. Lit. 123 b. 2 Inst. 180. 3 Inst. 60. 4 Blac. Com. 210. 1 East, P. C. c. 10, s. 1, p. 434. (b) 4 Blac. Com. 211. 1 Hawk. P. C. c. 41, s. 11. 1 Hale, 627. Bract. lib. 3, c. 28. Leg. Gul. 1, 1. 19, Wilk. Leg. (c) The Irish Act, 10 Geo. 4, c. 34, Of aiders and accessories. Of persons capable of committing rape. every such offender should be guilty of felony, and being convicted thereof should suffer death as a felon: and whereas it is expedient that the said several offences hereinbefore last specified should no longer be punishable with death; be it therefore enacted, that from and after the commencement of this act, (c) if any person shall be convicted of any of the said offences hereinbefore last specified, such person shall not be subject to any sentence, judgment, or punishment of death, but shall, instead of the sentence or judgment in and by the said act hereinbefore last recited, ordered to be given or awarded against persons convicted of the said last-mentioned offences, or any of them respectively, be liable to be transported beyond the seas for the term of his natural life.” (d) An indictment for this offence may be prosecuted at any time, and notwithstanding any subsequent assent of the party grieved. (e) All who are present, aiding and assisting a man to commit a rape, are principal offenders in the second degree, whether they be men or women. (f). And there may be accessories before and after in this offence; and such accessories are punishable under the 9 Geo. 4, c. 31, s. 31. (g) The law presumes that an infant, under the age of fourteen years, is unable to commit the crime of rape; and, therefore, he cannot be guilty of it; (h) or of an assault with intent to commit a rape; (i) and if he be under that age, no evidence is admissible to show that, in point of fact, he could commit the offence of rape. (j) This doctrine, however, proceeds upon the ground of impotency, rather than the want of discretion; and such infant may, therefore, be a principal in the second degree, as aiding and assisting in this offence, as well as in other felonies, if it appear by sufficient circumstances, that he had a mischievous discretion. (k) So upon an indictment for a rape, such an infant may be convicted of an assault, under the 1st Vict. c. 85, s. 11. () A husband cannot be guilty of a rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract; but he may be guilty as a principal by assisting another person to commit a rape upon his wife; for though in marriage the wife has given up her body to her husband, she is not by him to be prostituted to another. (m) Where a party took a woman by force, compelled her to marry him, and then had carnal knowledge of her by force, it appears to have been holden, that she could not maintain an appeal of rape against her husband, unless the marriage were first legally dissolved: but that when the marriage was made void, ab initio, by a declaratory sentence in the ecclesias (c) By sec. 7 the act commenced on the 1st of October, 1841. (d) This act does not mention the Irish Act, 10 Geo. 4, c. 34. (e) 1 Hale. 631, 632. 1 East, P. C. c. 10, s. 9, p. 446. 1 (f) Rex v. Vide and others, Fitz. Co- (g) See the section, post, p. 691. 2 Moo. C. C. R. 122. Rex v. Groom c. 2. upon whom rape may be committed. tical court, the offence became punishable, as if there had been no marriage. (n) The forcible taking away, and marrying a woman against her will was, however, made felony, by the 3 Hen. 7, And though that statute is repealed, the 9 Geo. 4, c. 31, ss. 19, 20, (o) makes certain provisions against the forcible or unlawful abduction of females, which will be mentioned in a subsequent chapter. The offence of rape may be committed, though the woman at last of the persons yielded to the violence, if such her consent was forced by fear of death or by duress. (p) If non-resistance on the part of prosecutrix proceeds merely from her being overpowered by actual force, or from her not being able, from want of strength, to resist any longer, or from the number of persons attacking her, she considered resistance dangerous, and absolutely useless, the crime is complete. (9) And it will not be any excuse that she was first taken with her own consent, if she were afterwards forced against her will; nor will it be an excuse that she consented after the fact, or that she was a common strumpet, or the concubine of the ravisher: for she is still under the protection of the law, and may not be forced. (r) Circumstances of this kind, however, though they do not necessarily prevent the offence from amounting to a rape, yet are material to be left to the jury, in favour of the party accused, especially in doubtful cases. (s) The notion that if the woman conceived it could not be a rape, because she must, in such case, have consented, appears to be quite exploded. (t) A person having connec tion with a married woman, she to be her A question has several times arisen, whether, having carnal knowledge of a married woman, under circumstances which induce her to suppose it is her husband, amounts to a rape. The prisoner broke and entered a house by night, in order to have connection with the owner's wife, if he could pass as her husband, but not meaning to supposing him force her if she discovered the fraud; he was in the act of copulation husband, is not when she made the discovery, and immediately, and before comple- guilty of a tion, he desisted. Upon an indictment for burglary, with intent to rape. commit a rape, the jury found that he entered with the intent to pass for the woman's husband, and to have connection with her if she did not make the discovery, and to desist if she did. Upon a case reserved, four of the judges thought that the having a carnal knowledge of a woman, while she was under the belief of its being her husband, would be a rape; but the other eight judges thought that it would not; and Dallas, C. J., pointed out forcibly the difference between compelling a woman against her will, when the abhorrence which would naturally arise in her mind was called into action, and beguiling her into consent and co-operation. But several of the eight judges intimated that if the case should occur again, they would advise the jury to find a special verdict. (u) And it has been held in two late cases, that if a man gets into bed with a married woman, and, by fraud, has connection with her, she believing him to be her husband, and therefore con |