Ass. 1779, 1 East's P. C. 443, 444. By such capability of distinguishing between good and evil, must be understood a belief in God, or in a future state of rewards and punishments; from which the court may be satisfied that the witness entertains a proper sense of the danger and impiety of falsehood. White's case, 1 Leach, 430. See tit. Infant. It appears to have been allowed, that the fact of the child's having complained of the injury recently after it was received, is confirmatory evidence ; but where the child is not fit to be sworn, it is clear that any account which it may have given to others, ought not to be received. 1 Russ. 565, citing Brazier's case, supra. See Phill. Ev. 19. 222. 6th edit. 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 mother, 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. 1 Russ. 565. 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 meantime 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, he 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 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 O. 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). Where child incompetent as a witness, her complaints not evidence. Trial postponed on account of child's incompetency. nature of an oath. But where it appeared that the prosecutrix, who was an adult, Adult prosewas not sufficiently acquainted with the nature of an oath to be cutrix not allowed to give evidence, and the judge discharged the jury, in knowing the order that she might be better instructed before the next assizes; the judges afterwards held that the discharge was improper, and that the prisoner ought to have been acquitted: a pardon was therefore recommended. R. v. Wade, Easter Term, 1825, 1 R. & M. 86. evidence. In a case where the party ravished had died before the trial, Where female her deposition, corroborated by other evidence of actual force and is dead, her penetration, was held sufficient to warrant a conviction, though depositions are 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, Evidence confirmatory of a child, desirable, Wife witness of necessity against husband. General caution. Cross-examin cutrix ; 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. R. v. Fleming and Windham, 2 Leach, 854. Where the evidence of children is admitted, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place, and circumstances, 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. 4 Blac. Com. 214. Phill. Ev. 19. 6th edit. 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. "It is true," says Lord Hale, " that rape is a most detestable crime, and therefore ought severely and impartially to be punished 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 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." 1 Hale, 635, 636. 4 Blac. Com. 214. On trial for rape it was held, that the prosecutrix was not comation of prose- pellable, on cross-examination, to answer whether she has not had connection with other men; or with a particular individual named, as these questions tended to criminate herself. And it was also held, that it was not allowable to give evidence of her having had such connection, as not being connected with the present charge, and which she could not come prepared to answer : after conviction, the judges were of opinion it was properly ruled on both points. R. v. Hodgson, C. C. R. 211. against her. General impeachment of character. Evidence in answer. Cross-examina tion of prosecutrix. It is said, however, that the character of the prosecutrix as to general chastity may be impeached by general evidence. C. C.R. 211. n. (a.) R. v. Clarke, 2 Stark. N. P. C. 241. And where the general character of the prosecutrix has been impeached on cross-examination as to particular facts, evidence of subsequent good conduct on her part is admissible. R. v. Clarke, ib. See Stark. Evid. 1270. On an indictment for rape, it was held competent to ask prosecutrix on cross-examination, whether since the time of the supposed rape she had not been seen walking the streets in a sus picious and discreditable manner. In the same case it was stated, that evidence might be given of her general lightness of character, but not of particular acts of criminality. Per Park and Parke Js., Oxford Spring Ass., 1829, R. v. Barker, 3 Car. & P. 589. By 9 G. 4. c. 31. § 18., " And whereas, upon trials for the crimes of buggery, and of rape, and of carnally abusing girls under the respective ages hereinbefore mentioned, offenders frequently escape by reason of the difficulty of the proof which has been required of the completion of those several crimes; for remedy thereof be it enacted, that it shall not be necessary, in any of those cases, to prove the actual emission of seed in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penetration only." Proof of com pletion of crime. On indictment for a rape, the jury found penetration, but nega- S. P. tived emission; and the judges on case held the conviction right. E. T. 1832, R. v. Cox, MS. Bayley B. S. C. 1 M. 337. It is necessary to aver in the indictment, that the act was committed" against the will" of the party. 1 Russ. 561. So, the word "ravish" is essential in the indictment, and no other term will supply the omission. Ibid. It has been considered, that the words "did carnally know" are not essential; but that, being appropriate and generally used, it would not be prudent to omit them. Ibid. On indictment for a rape the words carnaliter cognovit were omitted on case, six judges out of twelve thought it cured by verdict, because those words are not in 9 G. 4. c. 31. ; but they thought it bad before verdict. M. T. 1832, R. v. Warren, MS. Bayley B. See 7 G. 4. c. 64. § 21. In a case where the 1st count of the indictment charged the prisoner as a principal in the first degree, and in the 2d count he was charged as a principal in the second degree, by aiding and abetting, and it appeared that the prisoner and others committed the crime in succession, the others aiding and abetting in turn; the prisoner was found guilty generally. An objection was raised, that 9 G. 4. c. 31. makes no specific provision against aiders and abettors on case reserved, the judges held that the conviction was good on the 1st count. Tr. T. 1832, R. v. Folkes and Ludd, 1 M. 354. See 1 Russ. 25. et seq. See R. v. Burgess and others, infra, 726. : III. Punishment of Rape. Necessary aver- know.” After verdict. Prisoner in dicted as principal, both in the first and second degree. Of old time rape was felony, for which the offender was to suffer Felony without death: afterwards the offence was made less, and the punishment benefit of changed from death to the loss of those members whereby they clergy. offended; that is to say, it was changed to castration and loss of his eyes, unless she that was ravished before judgment demanded him for her husband. 2 Inst. 180. By the 9 G. 4. c. 31. § 16. it is enacted, "That every person Punishment of convicted of the crime of rape shall suffer death as a felon." § 17. enacts, "That if any peron shall unlawfully and carnally know and abuse any girl under the age of ten years, every such offender shall be guilty of felony, and, being convicted thereof, shall suffer death as a felon. And if any person shall unlawfully and carnally know and abuse any girl, being above the age of ten 3A 3 death. 9 Geo. 4. c. 31. Carnal knowledge of a girl under ten; the like of a girl above ten and below twelve. Pardon. Persons present and aiding are principals. Joint indictment against several. Not present, accessaries. Accessaries before and after. Punishment. years, and under the age of twelve years, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for such term as the court shall award." And by stat. 13 R. 2. st. 2. c. 1., no charter of pardon shall be allowed for rape, unless the rape be specified therein. IV. Principal and Accessary. Mr. Hawkins says, all who are present and actually assist a man to commit a rape, may be indicted as principal offenders, whether they be men or women. 1 Haw. c. 41. § 6. So one woman may be a principal to the ravishment of another. In R. 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. St. Cl. 6. p. 244. n. (17.) 2d edit., and see 1 Russ. 562. And Ld. Hale says, that by stat. 18 El. c. 7., the principals in rape are ousted of clergy, whether they be principals in the first degree, to wit, he that committed the fact; principals in the second degree, to wit, present, aiding, and abetting; but accessaries, before and after, have their clergy. 1 Hale, 633. By 9 G. 4. c. 31. § 31., every accessary before the fact to felonies punishable under that act, for whom no punishment has been provided, are made liable, at the discretion of the court, to be transported for any term not exceeding fourteen nor less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding three years; and every accessary after the fact to any felony punishable under that act (except murder) is liable to be imprisoned, with or without hard labour, for any term not exceeding two years. County of Warrant for a Rape. To the constable of and to all other constables and peace officers in and for the said county S of FORASMUCH as A. S. of, in the said county, single day of -, in the instant, at in the said county, did violently and feloniously make an assault upon her, the said A. S., and her, the said A. S., then and there, violently and against her will, did ravish and carnally know. These are therefore to command you in his majesty's name, forthwith to apprehend and bring before me, or some other of his majesty's justices of the peace in and for the said county, the body of the said · day of · Indictment for a Rape. County of THE jurors for our lord the king upon their oath in the of Recusant. See Popery and Public Worship. Rescue. [25 G. 2. c. 37.-1 & 2 G. 4. c. 88.-3 G. 4. c. 126.] RESCOUS is an ancient French word, coming from rescourer, What a rescous that is, recuperare, to recover; and signifies a forcible setting is. at liberty against law a person arrested by the process or course of law. 1 Inst. 160. It seems that it is necessary that the rescuer should have knowledge that the person is under arrest for a criminal offence, if he be in the custody of a private person; but if he be in the custody of an officer, there at his peril he is to take notice of it. 2 Hale, 606. From private or public custody distinction. But it is said that to rescue a felon taken on a general warrant, In what cases to answer what shall be objected against him, no cause being felony. expressed in the warrant, is no felony. 1 Hale, 578. Nor unless a felony hath been really done. Hale's Sum. 116. Although a prison breaker may be arraigned for that offence, Not to be arbefore he be arraigned of the crime for which he was imprisoned, raigned for yet he who rescues one imprisoned for felony cannot, according to the better opinion, be arraigned for such offence, as for a felony, till the principal offender be attainted; but he may be immediately proceeded against for a misprision, if the king pleases. 2 Haw. e. 21. $7. Therefore, if the principal die before the attainder, he shall be fined and imprisoned. Hale's Sum. 116. felony till after attainder of party rescued. But if the person rescued were imprisoned for high treason, the High treason. rescuer may be immediately arraigned, all being principals in high treason. 1 Russ. 384. Also, if the principal be found not guilty, or guilty of a crime Where princinot capital, the rescuer ought to be discharged of felony: but pal is acquitted, he may be fined for the misdemeanor. 1 Hale, 598, 599. or convicted of a less crime. |