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is no

rape; for

Woman ravish- It is said by Mr. Dalton, (c. 160.) That if a woman at the time ed conceiving. of the supposed rape do conceive with child by the ravisher, this

(he says) a woman cannot conceive except 1 Haw. e. 41. she doth consent. But Mr. Hawkins observes that this

opinion seems very questionable; not only because the previous violence is no way extenuated by such a subsequent consent; but also, because if it were necessary to shew that the woman did not conceive, the offender could not be tried till such time as it might appear whether she did or not; and likewise because the phi

losophy of this notion may be very well doubted of. And 1 Hale, 631. Ld. Hale says, this opinion in Dalton seems to be no law.

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II. Evidence on an Indictment of Rape.

The woman's The party ravished may give evidence on oath, and is in law a oath.

competent witness ; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that

concur in that testimony. 1 Hale, 633. Circumstances

For instance, if the witness be of good fame; if she presently in favour of it. discovered the offence, and made pursuit after the offender ; shewn

circumstances and signs of the injury, whereof many are of that nature that only women are the most proper examiners and inspectors; if the place wherein the fact was done were remote from people, inhabitants, or passengers ; if the offender fled for it; these, and the like, are concurring evidences to give greater probability to her testimony, when proved by others as well as her

self. 1 Hale, 633. Circumstances But, on the other side, if she concealed the injury for any conin disfavour of siderable time after she had opportunity to complain ; if the place it.

where the fact was supposed to be committed were near to inhabitants or common recourse or passage of passengers, and she made no outcry when the fact was supposed to be done, when and where it is probable she might be heard by others; or if a man prove himself to be in another place, or in other company, at the time she charges him with the fact; or if she be wrong in the description of the place, or swear the fact to be done in a place where it was impossible the man could have access to her at that time, as if the room were locked up, and the key in the custody of another person; these and the like circumstances carry a strong presumption that her testimony is false or feigned. 1 Hale, 633.

In a work of this nature, it is not necessary to enter into a detail of the judicial opinions that have at different times been delivered on this subject ; they are chronologically and correctly given at large in 1 East's P. Č. c. 10. § 3. It is sufficient to state generally, that now the judges consider it to be the law of the land, that emission as well as penetration must take place to constitute this offence. But though there must be an emission, it is not necessary that there should be direct and positive evidence of that fact: this, like all other facts, may be established in proof by the circumstances attending it. In various cases the female cannot swear to the fact, though it take place; as in the instance of infants ; or in the case of some adults, who may have been rendered senseless by the previous violence of the man, or of others,

438.

ness.

See title

be its age,

442.

who are never conscious of the fact when it does take place. Without, however, entering more minutely into the discussion of such a subject, it will be a sufficient hint to Magistrates, before whom a person may be brought charged with this crime, to attend to this distinction; if penetration be proved, and it appear on the whole that the man gratified his passion and appeared to be satisfied, it will be evidence from which a jury would be directed to infer emission; and consequently in such a case the magistrates ought to commit the party to take his trial for the capital offence. But if, on the contrary, the man were disturbed or interrupted before he appeared to have completed his purpose, a jury would probably infer that there had been no emission ; and in such a case the justices should commit or bind the party over to take his trial for a misdemeanor, (viz.) an attempt to commit a rape only.

And with regard to penetration, it will be sufficient to make R. v. Russon. one observation only; that any penetration, however trifling, 0.B. Oct.1777. though it do not break the hymen, is sufficient for this purpose.

1 East's P. C. It has been made a doubt, at different periods in the history of

Infant a wit. our courts of law, at what particular age an infant could be sworn to prove a rape, or an assault with intent to ravish her; and at Intant. one time a rule appears to have prevailed, that no child could be Vol. III. p. 57. admitted as a witness under the age of nine years, and very few R. v. Travers, under ten. But it appears now to be well established, that a i Str. 700. child of any age, if capable of distinguishing between good and R. v. Dunnel, evil, may be examined upon oath ; but that, whatever may

1 East's P. C. it cannot be examined unless sworn. By such capability of distinguishing between good and evil, must be understood a belief in Brazier's case, God, or in a future state of rewards and punishments ; from which Reading Spr. the Court may be satisfied that the witness entertains a proper

Ass. 1779. sense of the danger and impiety of falsehood. White's Case,

1 East's P. C. 1 Leach, 430.

It appears to have been allowed, that the fact of the child's i Russ. 812. having complained of the injury recently after it was received, is citing Brazier's confirmatory evidence; but where the child is not fit to be sworn,

case, supra,

See Phill. Ev, it is clear that any account which it may have given to others

21. 4th edit. ought not to be received. Thus on an indictment for a rape on a child of five years of age, where the child was not examined, but an account of what she had told her mother about three weeks after the transaction was given in evidence by the her, and the jury convicted the prisoner principally, as was supposed, on that evidence ; the judges, on a case reserved for their opinion, thought the evidence clearly inadmissible ; and the prisoner was accordingly pardoned. Tucker's case, Exeter Spr. Ass. 1808. cor. Marshall Serjt. MS. C.C.R. Ante, Vol. III. p. 58.

When the child has appeared not sufficiently to understand the nature and obligation of an oath, Judges have often thought it necessary, for the purposes of justice, to put off the trial of a prisoner, directing that the child in the mean time should be properly instructed. Thus, in a criminal prosecution that was coming on to be tried before Rooke J. at Gloucester, finding that the principal witness was an infant, who was wholly incompetent to take an oath, postponed the trial till the following assizes, and ordered the child to be instructed in the meantime by a clergyman in the principles of her duty, and the nature and obligation of an oath. At the next assizes the prisoner was put upon his

443. 444.

trial, and the girl being found by the court, on examination, to have a proper sense of the nature of an oath, was sworn, and upon her testimony the prisoner was convicted, and afterwards executed. Mr. J. Rooke mentioned this at the 0. B. in 1795, in the case of Patrick Murphy, who was indicted for a rape on a child of seven years old, and the learned judge added, that upon a conference with the other judges upon his return from the circuit, they unanimously approved of what he had done. Vide 2 Bac. Abr.

577. (n). 1 Leach, 430. (n). Flemming and In a case where the party ravished had died before the trial, Windham her deposition, corroborated by other evidence of actual force (case of). and penetration, was held sufficient to warrant a conviction, 2 Leach, 854.

though there did not appear to be any direct evidence of emission. It was left to the jury to determine whether the crime had been completed by penetration and emission ; and they were directed that they might collect the fact of emission from the evidence, though the unfortunate girl was dead, and could not therefore give any further account of the transaction, than that which was

contained in her deposition before the magistrate. 4 Blac. Com. Where the evidence of children is admitted, it is much to be 214.

wished, in order to render their evidence credible, that there Phill Ev. 21. should be some concurrent testimony of time, place, and circum4th edit.

stances, in order to make out the fact; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. There may be, therefore, in many cases of this nature, witnesses who are competent, that is, who may be admitted to be heard ; and yet, after being heard, may prove not to be credible or such as the jury is bound to believe. For one excellence of the trial by jury is, that the jury are triers of the credit of the witnesses as well as of the truth of the fact.

The party grieved is so much considered as a witness of necessity in this, as in other personal injuries, that if one assist another man to ravish his own wife, she is admissible as a witness against him. Lord Audley's case, 3 Howell's St. Tr. 419. cited in

1 East's P. C. 444. General cau. “ It is true,” says Lord Hale, “ that rape is a most detestable

crime, and therefore ought severely and impartially to be punished i Hale, 635. with death: but it must be remembered, it is an accusation easily

to be made, and hard to be proved, and harder to be defended by 4 Blac. Com.

the party accused, though never so innocent.” He then mentions two remarkable cases of malicious prosecution for this crime, that had come within his knowledge; and concludes, “ I mention these instances that we may be more cautious upon trials of offences of this nature, wherein the court and jury may, with so much ease, be imposed upon without great care and vigilance ; the heinousness of the offence many times transporting the judge and jury with so much indignation, that they are over-hastily carried to the conviction of the person accused thereof, by the confident testimony, sometimes of malicious and false witnesses."

tion.

636.

214.

III. Punishment of Rape.

Felony without benefit of elergy.

of old time rape was felony, for which the offender was to suffer death: afterwards the offence was made less, and the punishment changed from death to the loss of those members whereby they offended ; that is to say, it was changed to castration and loss of his eyes, unless she that was ravished before judgment 2 Inst. 180. demanded him for her husband.

Then by the statute of 3 Ed. 1. c. 13. it was made a trespass, 3 Ed. 1. c. 13. subjecting the offender to two years' imprisonment and a fine at the king's will; and it was again made felony by the 13 Ed. 1. 13 Ed. 1.c. 34. c. 31.; and at last by the 18 El. c. 7. was excluded from the 18 Eliz. e. 7. benefit of the clergy.

And by 13 R. 2. st. 2. c. 1. No charter of pardon shall be al- Pardon. lowed for rape, unless the rape be specified therein.

IV. Principal and Accessary. Mr. Hawkins says, all who are present and actually assist a Persons present man to commit a rape, may be indicted as principal offenders, and aiding are whether they be men or women. 1 Haw. c. 41. § 6.

principals. So one woman may be a principal to the ravishment of another.

In Rer v. Burgess and others, Chester Spr. Ass. 1813, upon an indictment, charging three persons jointly with the commission of a rape, an objection was taken that three persons could not be guilty of the same joint act; but it was over-ruled, upon the ground that the legal construction of the averment was only that they had done such acts as subjected them to be punished as principals in the offence. The execution was, however, respited, probably with a view to enable the learned judges to consult other authorities on the accuracy of their opinion: but the prisoners were afterwards executed. 5 Ev. Col. Stat. Cl. 6. p. 399. note (12.) and see 1 Russ. 801.

And Ld. Hale says, that by the 18 El c. 7. the principals in Not present rape are ousted of clergy, whether they be principals in the first accessaries. degree, to wit, he that committed the fact; or principals in the second degree, to wit, present, aiding, and abetting; but accessaries, before and after, have their clergy. 1 Hale, 693.

Indictment for a Rape.

Westmorland. { Theiuro rifero cur lord the king upon their oath

in the county of

present, that A. O. late yeoman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the

day of year of the reign of with force and arms, at

in the county aforesaid, in and upon one A. I. spinster, in the peace of God, and of our said lord the king, then and there being, violently and feloniously did make an assault, and her the said A. I. against the will of her the said A. I. then and there feloniously did ravish and carnally know; against the peace of our said lord the king, and against the form of the statute in such case made and provided.

Receipts, (Stamp Duty on). See atanips.

6

Recognisance.

[3 H. 7. c. 1. - 1 & 2 P. & M. c. 13. - 4 G. 3. c. 10.] What it is.

RECOGNISANCE is a bond of record, testifying the recognisor

to owe a certain sum of money to some other; and the acknowledging of the same is to remain of record; and none can take it but only a judge or officer of record. Dalt. c. 186.

2 Blac. Com. 341. In what cases These recognisances, in some cases, the justices of the peace it may be taken, are enabled to take by the express words of certain statutes: but

in other cases (as for the peace, and good behaviour, and the like,) it is rather in congruity, and by reasonable intendment of law, than by any express authority given them, either by their

commission, or by the statute law. Crom. 125. Dalt. c. 168. Justices may

It is now settled that a justice of the peace is authorised to require require sureties surety of the peace for a limited time, (e. g. two years,) according of the peace for to his discretion, and that he need not bind the party over to the alimited period. next sessions only. In this case Abbott C. J. in delivering the judgWilles v. Bridges.

ment of the Court, said, “ The power of the justices assembled at their K. B. H. 1819. sessions, to take surety for the peace, is derived from their commission, 2 B. & A. 278. and is found in the first clause, or assignavimus, of the commission,

and by that clause the power is given to any one justice, and not to two or more, as is done by the second clause, which relates to the taking and trial of indictments, and some other matters; and therefore if a single justice cannot take security for a longer period than until the next sessions, it would be difficult to shew that a number of justices assembled at sessions may take it for a longer time; and unless they can do so, then, as it may be in most cases expedient that the period of surety should be longer, than the interval between sessions and sessions, both parties, or at least the party required to give the surety, and his mainpernors, must be harassed by repeated attendances, to accomplish an object, which may be as well effected by a single attendance, at which the whole matter may be heard and discussed. It may in some cases, be expedient, that the time and amount of the security, should be settled by the concurrent sentiments of several persons, rather than by the single opinion of one individual ; and, therefore, we would be by no means understood to disapprove of the usual practice, which is, to take the surety until the next sessions only. On the other hand, expence and trouble are saved by an adjustment of the whole matter in the first instance; and therefore there may be other cases in which this may be the most convenient course.

Wheresoever any statute giveth them power to take a bond of any man, or to bind over any man to appear at the assizes or sessions, or to take sureties for any matter or cause, they may take a recognisance. Yea, wheresoever they have authority given them to cause a man to do a thing, there it seemeth they have in congruity power given them to bind the party by recognisance to do it; and if the party shall refuse to be bound, the justice may send him to gaol.

Dalt, e. 168.

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