Evidence. The evidence is the same as in rape, with this exception, that it will be no defence that the girl consented. If she did not consent it will be a rape, and the defendant may be indicted accordingly: (ante, p. 480), but the fact of non-consent is no defence to an indictment for this offence. Reg. v. Neale, 1 C. & K. 591. The child must be proved to be above the age of ten years and under the age of twelve years. The defendant cannot, on an indictment for this offence, be convicted of an assault; the proper form of indictment, if the offence be not completed, is at common law, for an attempt to commit the statutable misdemeanor. Reg. v. Martin, 2 Mood. C. C. 123; 9 C. & P. 213, 215. *ASSAULT WITH INTENT TO COMMIT A RAPE. [ *485 ] Statute. 9 G. 4, c. 31, s. 25.]-(Ante, p. 458). Indictment. Commencement as ante, p. 480]-in and upon one A. N., in the peace of God and our lady the Queen then and there being, did make an assault, and her the said A. N. then and there did beat, wound, and ill treat, with intent her the said A. N., violently and against her will then and there feloniously to ravish and carnally know, and other wrongs to the said A. N., then and there did, to the great damage of the said A. N.; 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. Add a count for a common assault. But see R. v. Dawson, 3 Stark. 62. Misdemeanor, imprisonment, with or without hard labour, for not more than two years, or fine, or both; and to find, if required, sureties to keep the peace. 9 G. 4, c. 31, s. 25, (ante, p. 458). Evidence. Prove an attempt to commit a rape, the offence being incomplete for want of evidence of penetration. To prove the intent, evidence of previous attempts to commit the same offence is not admissible. R. v. Lloyd, 7 C. & P. 318. If, upon this indictment, the prosecutrix were to prove a rape actually committed, the defendant must be acquitted. See R. v. Harmwood, 1 East, P. C. 411, 440. SECT. 7. SODOMY. Statute. 9 G. 4, c. 31, s. 15]-Enacts, that every person convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall suffer death as a felon. Sect. 18.]-(Ante, p. 480). Indictment for Sodomy. Commencement as ante, p. 480]-in and upon one J. N., then and there being, feloniously did make an assault, and then and there feloniously, wickedly, and against the order of nature, had a venereal affair with the said J. N., and then and there feloniously, carnally [ *486 ] *knew him the said J. N., and then and there feloniously, wickedly, and against the order of nature, with the said J. N. did commit and perpetrate that detestable and abominable crime of buggery (not to be named among Christians); 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, death. 9 G. 4, c. 31, s. 15. This sentence may be record(ante, p. 251). ed. 4 G. 4, c. 48, This offence is not s. 1, (ante, p. 69). triable at any quarter sessions. 5 & 6 Vict. c. 38, Evidence. The evidence is the same as in rape, (see ante, p. 481 et seq.), and, as in that case, penetration alone is sufficient to constitute the offence. R. v. Reckspear, 1 Mood. C. C. 342. There are, however, two exceptions 1st, that it is not necessary to prove the offence to have been committed against the consent of the person upon whom it was perpetrated; and 2ndly, both agent and patient (if consenting) are equally guilty. In R. v. Wiseman, Fortesc. 91, where the defendant was indicted for having committed this offence with a woman, a majority of the judges held that this was within the statute, but two or three of them held that it was not; no opinion was publicly given. See Reg. v. Jellyman, 8 C. & P. 604. If it be committed on a boy under fourteen years of age, it is felony in the agent only; 1 Hale, 670; 3 Inst. 59; and the same, it should seem, as to a girl under twelve. Where the defendant forced open a child's mouth, and put in his pri vate parts, and proceeded to the completion of his lust, the judges were of opinion that this did not constitute the offence of sodomy. R. v. Jacobs, R. & R. 331; 1 Russ. 698. The defendant may be convicted of the assault, if the evidence fail to make out the entire charge against him. 7 W. 4 & 1 Vict. c. 85, s. 11, (ante, p. 253). Indictment for Bestiality. Commencement as ante, p. 487]-in the county aforesaid, with a certain cow ["any animal"] then and there being, feloniously, wickedly, and against the order of nature, had a venereal affair, and then and there feloniously, wickedly, and against the order of nature, carnally knew the said cow; and then and there feloniously, wickedly, and against the order of nature, with the said cow did commit and perpetrate that detestable and abominable crime of buggery (not to be named among Christians); against the form of the statute in such case made and provided, and agains the peace of our lady the Queen, her crown and dignity. The animal was held to be described with sufficient certainty as "a certain bitch," although the female of foxes and some other animals are designated bitches, as well as the females of dogs. Reg. v. Allen, 1 C. & K. 495. Felony, death. 9 G. 4, c. 31, s. 15. This sentence may be recorded. 4 G. 4,. c. 48, (ante, p. 251.) The carnal knowledge is proved in the same manner as in rape or sodomy. (See ante, p. 481). But the defendant cannot, upon this indictment, be convicted of an assault under stat. 7 W. 4 & 1 Vict. c. 85, s. 11, which applies only where *the charge includes an offence against the person. Reg. v. [*487 ] Eaton, 8 C. & P. 417. An indictment for an attempt to commit this offence may readily be framed from this and the next precedent. It is punishable in the same manner as the attempt to commit sodomy. See R. v. Mulreaty, 1 Russ. 699. This offence is not triable at any quarter sessions. 5 & 6 Vict. c. 38, s. 1, (ante, p. 69). ASSAULT WITH INTENT TO COMMIT SODOMY. Statutes. 9 G. 4, c. 31, s. 25.]-(Ante, p. 458). Indictment. Commencement as ante, p. 380]-in and upon one J. N., in the peace of God and our lady the Queen then and there being, did make an as sault, and him the said J. N. then and there did beat, wound, and ill-treat, with intent that detestable and abominable crime (not to be named among Christians) called buggery, with the said J. N. then and there feloniously, wickedly, diabolically, and against the order of nature, to commit and perpetrate; to the great displeasure of Almighty God, to the great damage of the said J. N.; 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. Misdemeanor, imprisonment, with or without hard labour, not exceeding two years, or fine, or both; and to find, if required, sureties to keep the peace. 9 G. 4, c. 31, s. 25, (ante, p. 458). Evidence. Prove an attempt to commit sodomy, the offence being incomplete for want of evidence of penetration. If, however, the complete offence of sodomy be proved, the defendant must be acquitted. An indictment against two persons, which charged that they, being persons of wicked and unnatural dispositions, did in a certain open and public place unlawfully meet together, with the intent of committing with each other, openly, lewdly, and indecently, in the said public place, divers nasty, wicked, filthy, lewd, beastly, unnatural, and sodomitical practices, and then and there unlawfully, wickedly, openly, lewdly, and indecently did commit with each other, in the sight and view of divers liege subjects, &c., divers such practices as aforesaid, &c., was held bad in arrest of judgment, for want of certainty. Reg. v. Roved, 3 Q. B. 180; 2 G. & D. 519. *PART II. OFFENCES OF A PUBLIC NATURE. CHAPTER I. [ *488 ] OFFENCES AGAINST THE QUEEN AND HER GOVERNMENT. SECT. 1. High Treason, 488. 2. Coining, 499. 3. Sedition and Blasphemy, 520. 4. Administering unlawful Oaths, 534. 5. Inciting to Mutiny, 539. 6. Embezzling the Queen's Stores, 541. SECT. 1. HIGH TREASON. Indictment for compassing the Queen's Death. MIDDLESEX, to wit:-The jurors for our lady the Queen upon their oath present, that J. S. late of the parish of B., in the county of M., labourer, a subject of our said lady the Queen then and there being, not regarding the duty of his allegiance, nor having the fear of God in his heart, but being moved and seduced by the instigation of the devil, as a false traitor against our said lady the Queen, and wholly withdrawing the allegiance, fidelity, and obedience which every true and faithful subject of our said lady the Queen should and of right ought to bear towards, our said lady the Queen, on the third day of August, in the ninth year of the reign of our sovereign lady Victoria, and on divers other days as well: before as after, with force and arms, at the parish aforesaid, in the county aforesaid, maliciously and traitorously, together with divers other false traitors to the jurors aforesaid unknown, did compass, imagine, devise, and intend to depose our said lady the Queen from the royal state, title, power, and government of this realm, and from the style, |