CARNALLY ABUSING CHILDREN.

To unlawfully and carnally know and abuse any girl, if she is under the age of twelve years, is a felony, punishable by penal servitude to the extent of life; if between twelve and thirteen, whether with or without the consent of the girl, it is a misdemeanor, punishable by imprisonment not exceeding two years.(z)

In this offense it is immaterial whether the act were done with or without the consent of the child. She may be a witness on her oath if she appears sufficiently to understand the nature and obligation of an oath.

Another offense may be noticed here: By false pretenses, false representations, or other fraudulent means, to procure any female under the age of twenty-one years to have illicit carnal connection with any man is a misdemeanor, punishable by imprisonment not exceeding two years.(a)

To commit an indecent assault upon a female, or to attempt to have carnal knowledge of a girl under twelve years of age, is a misdemeanor, punishable by penal servitude not exceeding two years.(b)

UNNATURAL CRIMES.

To commit the crime against nature, with mankind or with any animal, is a felony, punishable by penal servitude; the penal servitude may extend to life, but may not be less than ten years. (c) The evidence is the same as in rape, with two exceptions: (a) It is not necessary to prove the

offense to have been committed without the consent of the person upon whom it was perpetrated. (b) Both parties, if consenting, are equally guilty; but if one of the parties is a boy under the age of fourteen years, it is felony in the other only. [There is no such crime in Ohio,(1) Indiana, or Iowa.(2)]

To attempt to commit the said crime, or to make an assault with intent to commit the same, or to make au inde

(z) 38 and 39 Vict., c. 94.

(b) Ibid., 2 52.

(a) 24 and 25 Vict., c. 100, % 49. (c) Ibid., 261.

(1) Davis v. Brown, 27 Ohio St. 325.

(2) Estes v. Carter, 10 Iowa, 40

cent assault upon a male person, is a misdemeanor, punishable by penal servitude to the extent of ten years.(d)

ATTEMPTS TO PROCURE ABORTION.

Three classes of persons may be guilty of crimes under this heading. The woman herself-the person who procures or supplies the drug, etc.-some other person.

For a woman being with child, with intent to procure her own miscarriage, to administer to herself any poison or other noxious drug, or to use any instrument or other means; or,

For any person to do the same with intent to procure the miscarriage of any woman, whether she be with child or not, is a felony, punishable by penal servitude to the extent of life.(e) It is not necessary that the drug administered should have any tendency to produce miscarriage; it is enough if it is "noxious" and is given with the intent charged, if it is in itself hurtful.(ƒ)

For any person to procure or supply poison or other noxious thing, or any instrument or thing, knowing that the same is intended to be unlawfully used with intent to procure the miscarriage of a woman, is a misdemeanor, punishable by penal servitude to the extent of five years.(g)

(d) 24 and 25 Vict., c. 100, 8 62. As to obtaining money by threat ening to accuse of this crime, v. p. 104.

(e) Ibid.,

58.

(g) 24 and 25 Vict., c. 100, & 59.

(f) R. v. Cramp, 14 Cox, 390.

CHAPTER III.

ASSAULTS, ETC.

UNDER this head we shall consider all the remaining offenses against the person.

COMMON ASSAULT.

An assault is an attempt or offer to commit a forcible crime against the person of another; for example, presenting a loaded gun at a person. It will be noticed that there need not be an actual touching of the person assaulted. But mere words never amount to an assault. (t)

The combatants at a prize fight and all persons aiding and abetting therein are guilty of an assault for which an indictment will lie. But (Lord Coleridge, C. J., Pollock, B., and Matthew, J., dissenting) the mere voluntary presence of persons at a prize fight does not necessarily make them guilty of an assault, as aiding and abetting. (u)

The unlimited character of this crime makes it a convenient means of punishing a variety of crimes, which do not at first sight seem to be assaults, at least not in the popular signification of the term; for example, putting a child into a bag, hanging it on some palings, and there leaving it. (v)

A battery is not necessarily a forcible striking with the hand or stick or the like, but includes every touching or laying hold (however trifling) of another person, or his clothes, in an angry, revengeful, rude, insolent, or hostile manner; for example, jostling another out of the way. Thus, if a man strikes at another with a cane or fist, or throws a bottle at him, if he miss, it is an assault; if he hit, it is a battery.

As a rule, consent on the part of the complainant deprives the act of the character of an assault, unless, indeed, non-resistance has been brought about by fraud. But the fact of consent will in

(t) 1 Hawk., c, 62, § 1.

(u) R. v. Coney, 8 Q. B. D. 534; 51 L. J. (M. C.) 66; 46 L. T. N. S. 307; 30 W. R. 678.

(v) R. v. March, 1 C. & K. 496.

general be immaterial when an actual battery or breach of the peace has been committed. (w)

A common assault is also the subject of a civil action for damages; and the party injured may either prosecute or bring his action first. The court will not, however, pass judgment during the pendency of a civil action for the same assault, (y) the reason obviously being that otherwise the issue of the civil action might be prejudiced.

A common assault, that is, a mere assault which may or may not have proceeded to a battery, is a misdemeanor, punishable by imprisonment not exceeding one year. (2) But the justice of the case is often more adequately met by compensation to the person injured. Therefore, with the assent of the prosecution, if the circumstances appear to warrant that course, the court may allow the defendant to plead guilty, and inflict upon him a merely nominal fine, on the understanding that he shall make a compensation to the prosecutor. (a)

Common assaults are usually disposed of by the magistrates assembled at petty sessions. The limit of punishment in ordinary cases of such summary conviction is a fine of £5 or imprisonment not exceeding two months; but in some more serious cases of assault upon females or boys whose age does not exceed fourteen years, the limits are £20 and six months. (b)

When a husband is convicted summarily or otherwise of an aggravated assault upon his wife, the court or magistrate, if satisfied that the future safety of the wife is in peril, has power to make an order having the effect of a judicial separation; and may also order the husband to pay a weekly sum for the support of the wife, and to give the custody of children under the age of ten years to the wife. The orders for alimentary payments and for custody of the children are revocable in case of adultery of the wife. And all orders under these powers are subject to appeal to the Probate and Admiralty Division of the High Court of Justice. (c)

The magistrates have not power to hear and determine any assault involving a question of title to lands, tenements, or hereditaments, or any interest therein or accruing therefrom, or as to any bankruptcy of insolvency, or any execution under the process of any court of justice. And if the assault is accompanied by an at(w) Broom, 917. (y) R. v. Mahon, 4 A. & E. 575. (a) R. v. Roxburgh, 12 Cox, 8.

(2) 24 and 25 Vict., c. 100, ? 47.
(b) 24 and 25 Vict., c. 100, 22% 42, 43.
(c) 41 and 42 Vict., c. 19.

tempt to commit a felony, or, in the opinion of the magistrates, is a fit subject for prosecution by indictment, they may abstain from any adjudication and leave the case to be prosecuted by indictment. (d)

As to the evidence on the part of the accused, it may be stated generally that the same facts which would reduce a homicide to misadventure are a good defense upon an indictment for a battery. (e) Other defenses are, that it was committed merely in self-defense, or in the proper administration of moderate correction, or in the execution of public justice, or in some lawful game. Inasmuch as it would not be right that the defendant should be punished twice for the same offense, it is a good defense that the matter has been disposed of by two justices: provided that if the defendant has been convicted, he has paid the penalty and suffered the imprisonment awarded; if dismissed, it does not matter whether it was on the ground of justification, the trifling character of the offense, or because it was not proved. (ƒ)

So much for common assaults; we have now to deal with those of an aggravated character.

ACTUAL AND GRIEVOUS BODILY HARM.

If the assault occasions actual bodily harm, the punishment is penal servitude to the extent of five years (g) for the misdemeanor. Actual bodily harm would include any hurt or injury calculated to interfere with the health or comfort of the prosecutor; it need not be an injury of a permanent character. (h) Nor is it necessary that there should be an intention to injure particular persons. Thus, where the prisoner shortly before the conclusion of a performance at a theater, with the intention and with the result of causing terror in the minds of persons leaving the theater, put out the gas lights on a staircase which a large number of such persons had to descend in order to leave the theater, and also placed an iron bar across a doorway through which they had in leaving to pass, and thereupon a panic seized a large portion of the audience, and they rushed in fright down the staircase, forcing those in front across the iron bar, and thus several of the audience were thrown down or otherwise severely injured, it was held that the prisoner was

(d) 24 and 25 Vict., c. 100, ? 46.

(ƒ) 24 and 25 Vict., c. 100, ?? 44, 45. (h) Arch. 694.

(e) Arch. 695.

(g) Ibid., ? 47.