REG. บ. CLARKE. resistance to the rape itself, they have no means of judging whether or not she consented to the prisoner's laying hands on her in the first instance. RapeAssault. [Note.-Mr. Parnell has been kind enough to furnish me with the following case.-REPORTER.] REG. v. MALPAS. At the Essex Lent Assizes, 1849, before Parke, B., Thomas Wheeler Malpas was indicted for a rape upon Ann Fosgate. The prosecutrix had died, since the alleged commission of the offence, of a fever caught in the village where she was living. Her deposition was accordingly put in evidence, and other evidence was given by which it was conclusively proved that the prisoner had had carnal knowledge of the prosecutrix. It was shown that the prisoner and the prosecutrix had been walking together for some time before the offence was said to have been committed, and that they remained in company with each other for some time after the connection took place before the prosecutrix returned home. But it was also proved by an eye-witness, that upon the prisoner's beginning to take liberties with the prosecutrix, she had screamed out and offered resistance. Parnell addressed the jury for the prisoner, and contended that the case was rather an aggravated case of seduction than a rape. In summing up, PARKE, B. told the jury that if they thought the prosecutrix resisted in the first instance but afterwards yielded to the prisoner's embrace under the influence of her own passions, or his solicitation, they might find the prisoner guilty of an assault. Rodwell for the prosecution. Verdict-guilty of an assault; sentence-one year's imprison ment and hard labour. COURT OF QUEEN'S BENCH. June 14, 1849. REG. v. JOHN BOWEN. (a) Indictment for false pretences-Omission of scienter-Aider by verdict The omission of the word "knowingly," in an indictment for false pretences, is no objection in arrest of judgment; even if it would be on demurrer. An indictment for false pretences charged that J. B., on, &c., at, &c., unlawfully did falsely pretend to H. that he had caused a writ of right to be issued at the suit of M. W. (the mother of the said H.) and others for the purpose of establishing the right of the said M. W. and others to a certain estate; and then requested the said H. to advance the said J. B. some money towards carrying on the said action by means of which said false pretences the said J. B. did then and there unlawfully obtain from the said H. the sum of 11., &c., with intent to cheat and defraud the said H. of the same. Whereas in truth and in fact the said J. B. had not and never has caused a writ of right or any other writ whatsoever to be issued at the suit of the said M. W. and others, or at the suit of the said M. W. alone; and there was then no action commenced or to be carried on, in which the said M. W. was in any way interested: : Held, a good count after verdict. Semble, per Lord Denman, C. J., that it would be good upon demurrer ; and that R. v. Henderson (2 Moo. C. C. 192), is wrongly decided. THIS their HIS was an indictment for false pretences; of which the fifth Indictment. count was as follows:-"And the jurors aforesaid, upon oath aforesaid, do further present that the said John Bowen, on the 3rd day of October, in the third year of the reign of our said late sovereign lord William the Fourth, at the parish aforesaid, in the county aforesaid, unlawfully did falsely pretend to the said Humphrey Hutchings that he the said John Bowen had caused a writ of right to be issued at the suit of the said Margaret Williams (the mother of the said Humphrey Hutchings) and others, for the purpose of establishing the right of her the said Margaret Fifth count. Williams and others to a certain estate, to wit, the Whaddon Hall Estate, and the said John Bowen then and there requested the said Humphrey Hutchings to advance him the said John Bowen money towards carrying on the said action so commenced by the said writ of right, by means of which said last-mentioned false pretences the said John Bowen did then and there unlawfully (a) Reported by A. BITTLESTON, Esq., Barrister-at-Law. REG. v. -Indictment obtain from the said Humphrey Hutchings the further sum of 14 JOHN BOWEN. of the moneys of him the said Humphrey Hutchings, with intent then and there to cheat and defraud him the said Humphrey False pretences Hutchings of the same. Whereas in truth and in fact the said -Scienter. John Bowen had not, and never has, caused a writ of right or any other writ whatsoever to be issued at the suit of the said Margaret Williams and others, or at the suit of the said Margaret Williams alone, or at the suit of the said Margaret Williams jointly with any other person or persons whatsoever. And whereas in truth and in fact there was then no action commenced or to be carried on in which the said Margaret Williams was in any way interested, to the great damage and deception of the said Humphrey Hutchings, to the evil example of all others in the like case offending, against the form of the statute in such case made and provided, and against the peace of our said lord the late King, his crown and dignity." The trial took place before Wightman, J., at the summer assizes for the county of Cardigan, in the year 1848, when a verdict of guilty was found upon the fifth count. Townsend and prisoner. In the following Michaelmas Term Watson obtained a rule to show cause why that verdict should not be set aside and a new trial granted, or why the judgment should not be arrested. Townsend and Benson now showed cause.-1. As to the motion Benson for the in arrest of judgment, the rule was obtained on the ground that the word "knowingly" is omitted, and that therefore the count is bad in law; but it is at all events good after verdict. It follows the words of the stat. 7 & 8 Geo. 4, c. 29, s. 53, which enacts, "that if any person shall, by any false pretence, obtain from any other person any chattel, &c., with intent to cheat or defraud any person of the same, every such offender shall be guilty of a misdemeanor." The 1st stat. 33 Hen. 8, c. 1, used the words "If any person or persons falsely and deceitfully obtain any money, &c. ;" and 30 Geo. 2, c. 24, these words-" All persons who knowingly and designedly, by false pretence or pretences, shall obtain, &c." Then the last statute leaves out those words "knowingly and designedly;" and it must be taken that they were intentionally omitted. There is certainly good reason for the omission; for if a person falsely and fraudulently states that which is not within his knowledge, he does as much wrong as if he makes a statement which he knows to be false. Then the 7 Geo. 4, c. 64, s. 21, provides, that "where the offence charged has been created by any statute or subjected to a greater degree of punishment, or excluded from the benefit of clergy by any statute, the indictment or information shall after verdict be held sufficient to warrant the punishment prescribed by the statute, if it describe the offence in the words of the statute." Therefore as this indictment describes the offence in the words of the statute, the omission of the word "knowingly" cannot be taken as an objection in arrest of judgment: (Reg. v. Law, 2 Moo. & Rob 197; 2 Russ. on Crimes, Ed. Greaves, 115.) In truth the scienter is involved in the verdict of guilty; for the indictment charges that the defendant did falsely pretend with intent to defraud; and after verdict that allegation ex vi termini imports knowledge. If REG. -he had been misinformed or mistaken, he might have shown it by JOHN BOWEN. way of defence. The case of Reg. v. Henderson (2 Moo. C. C. 192; 1 Čar. & M. 328) was decided upon demurrer. LORD DENMAN, C. J.-We think that there is great force in your argument. We will hear the other side. False pretences Scienter. P. Thompson, contrà.-1. This count of the indictment is bad, Thompson for for stating a false pretence, which is not within the statute. The the Crown. money is obtained towards carrying on an action; the false pretence which induces the prosecutor to part with his money is a false pretence that the prisoner would carry on an action; and to be within the statute the false pretence must be of some existing fact, not of something to be done in future; not a mere promise for future conduct: (Rex v. Goodhall, Russ. & R. 461.) LORD DENMAN, C.J.-The request to advance money towards carrying on the action is only a part of the narrative. WIGHTMAN, J.-The false pretence alleged is, that the defendant had caused a writ to be issued. Thompson.-Then, secondly, the scienter is of the essence of the offence. The defendant may have instructed an attorney to issue the writ, and in the belief that those instructions had been obeyed might have made the statement. WIGHTMAN, J.-But the 7 Geo. 4, c. 64, s. 21, says that if the offence is stated in the words of the statute, it shall be held sufficient after verdict. Thompson. That statute only applies to cases where all the material averments to constitute an offence are found in the indictment. In R. v. Martin (8 Ad. & Ell. 481), an indictment for obtaining goods by false pretences was held bad on error for not stating to whom the goods belonged; and there Lord Denman, C. J., said, "Then is the defect cured by verdict? The act 7 Geo. 4, c. 64, s. 21, says, that after verdict the indictment shall be sufficient 'if it describe the offence in the words of the statute;' and here the indictment does certainly pursue the words of the statute. But it is not enough to state the offence in general terms; the enactment assumes that the words shall be so employed as to show that some offence has been committed. There are many instances in which, if merely the statutory form were followed, no offence would be charged. We must put a reasonable construction on the act, and not go the length of holding an indictment good, after verdict, which charges only what may be no offence at all." Then Reg. v. Henderson is precisely in point. The marginal note is, " An indictment for obtaining money under false pretences must allege that the defendant knew the falsehood. Falsely and fraudulently' is not enough." The false pretence there charged was that one of the two prisoners was possessed of a certain sum of money; and the objection was taken that there was no allegation that the defendants knew that he had not the money, nor was it alleged that they did knowingly falsely pretend. Chitty's Crim. Law and R. v. Wickham (10 Ad. & Ell. 34), were cited; and it REG. v. False pretences -Scienter. was said that his pocket might have been picked of the money JOHN BOWEN, without his knowledge; upon which the argument was stopped, and all the judges held the indictment bad for want of this Indictment allegation. It was considered to be an essential part of the statement of the offence. In Reg. v. Wickham, it was conceded by Sir F. Pollock, as counsel for the crown, that the defendant's knowledge ought to have been alleged, and that the words "falsely and fraudulently" were not sufficient; and in Hamilton v. The Queen (9 Q. B. Rep. 271; 2 Cox C. C. 11), Patteson, J., in giving judgment, assumes that the pretence must be false to the knowledge of the defendant. Lastly, the indictment is bad for repugnancy. It avers a request to advance money towards carrying on "the said action so commenced," and yet negatives the existence of such an action. It should have said, "the said pretended action." LORD DENMAN, C. J.-That averment applies only to the misrepresentation, not to the fact. Thompson for the Crown. Thompson.-In Carter's case (2 East P. C. c. 19, s. 56, p. 985). an indictment for forging a bill of exchange was held bad because it averred that the bill was signed by H. H., instead of averring that it purported to have been signed by him, the signature being a forgery. So it is bad to charge the defendant with forgery of a certain writing, whereby A. was bound to B.; for if forged it could not bind: (Hawk. P. C. lib. 2, c. 25, s. 62, citing 3 Mod. 104.) LORD DENMAN, C. J.-Mr. Townsend, what answer do you give to Reg. v. Henderson? Townsend and Benson.-That case was not much considered, and the objection was taken by demurrer. Assuming that it would be fatal upon demurrer, it is cured by verdict. The doctrine of aider by verdict is carried to a great length in the recent case of R. v. Waters (1 Den. C. C. 356; 3 Cox C. C. 300.) There the indictment was clearly bad on demurrer, for it charged a mother with exposing her child, but contained no averment that the child was unable to take care of herself. The court, however, held that after verdict that defect was cured; and Baron Parke, in delivering the judgment of the court, said, "In this case the jury could not have found the prisoner guilty without actually negativing the power of the child to take care of herself, and so to escape the consequences of the unlawful act of the prisoner; and consequently after verdict that fact must be inplied." WIGHTMAN, J.-There the age was left doubtful by the indictment; and, after verdict, it was held that it must be intended that the child was of tender years; but what is left to intendment here? Townsend.-The knowledge of the defendant must be intended from the fraudulent intent which is found. WIGHTMAN, J.-He might have given instructions for issuing the writ, which had not been complied with. Townsend.-In Rex v. Airey (2 East, 30), objection was taken by writ of error to an indictment that it nowhere alleged that the |