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common strum

1. What it is.
II. Evidence on an Indictment of Rape.

[9 G. 4. c. 31.]
III. Punishment of Rape.

(9 G. 4. c. 31.]
IV. Principal and Accessary.
[9 G. 4. c. 31.]

I. zahat it is.
RAPE is when a man hath carnal knowledge of a woman, by Rape, what.

force and against her will. 2 Inst. 180. 1 Hawk. c. 41. ♡ 1. The offence of a rape is no way mitigated by shewing that the consenting at woman at last yielded to the violence, if such her consent were last. forced by fear of death or of duress. 1 Haw. c. 41. § 2.

Also, it is not a sufficient excuse in the ravisher to prove that Ravishing a the woman is a common strumpet ; for she is still under the protection of the law, and may not be forced. 1 Haw. C. 41. §. 2.

pet. Nor is it any excuse that she consented after the fact. 1 Haw. Consenting C. 41. f 2.

after the fact. The notion that if a woman conceived it could not be a rape, Non-concepon the ground that she must in that case have consented, may now tion. be considered as quite exploded. 1 East, P. C. 445. 1 Russ. 557.

Having carnal knowledge of a married woman under circum- Personation of stances which induce her to suppose it is her husband; held, by a female's husmajority of eight to four judges, that it did not amount to a rape, but band. several of the eight judges intimated, that if the case were to occur again, they would advise the jury to find a special verdict.. Trin. Term, 1822, R. v. Jackson, C. Č. R. 487.

A husband cannot be guilty of a rape upon his wife, on account Crime of husof the matrimonial consent which she has given, and which she band as to his cannot retract. But he may be guilty as a principal by assisting wife, another person to commit a rape upon his wife. 1 St. Tr. 387. 1 Hale, 629. ; cited i Russ. 557.

II. évidence on an Indictment of Rape. The party ravished may give evidence on oath, and is in law a The woman's competent witness; but the credibility of her testimony, and how oath. 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.

For instance, if the witness be of good fame; if she presently Circumstances discovered the offence, and made pursuit after the offender; shewn in favour of it 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 fac 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 herself. 1 Hale, 633.

But, on the other side, if she concealed the injury for any con- Circumstances siderable time after she had opportunity to complain; if the place in disfavour of

it. VOL. III.


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. i Hale, 633. General observ- In a work of this nature, it is not necessary to enter into a ations. 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, P. C. c. 10. § 3. It is sufficient to state

generally, that now the judges consider it to be the law of the (a) But see land, that emission (a) as well as penetration must take place to con9G.4.c.31.918. stitute the offence. But though there must be an emission, it is infrà, 725.

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, 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 one observation only; that any penetration, however trifling, though it do not break the hymen, is sufficient for this purpose: R. v. Russen, 0. B. Oct. 1777, 1 East, P. C. 438.

But the contrary was stated to be the law by Gurney B. in a case in which the prisoner was convicted. Hereford Sum. Ass.

1832, R. v. Gammon, 5 C. & P. 321. Infant a wit- It has been made a doubt, at different periods in the history of

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 one time a rule appears to have prevailed, that no child could be admitted as a witness under the age of nine years, and very few

under ten. R. v. Travers, 1 Str. 700. R. v. Dunnel, i East's At any age if P. C. 442. But it appears now to be well established, that a child of sufficient

of any age, if capable of distinguishing between good and evil, mental capacity.

may be examined upon oath ; but that, whatever may be its age, it cannot be examined unless sworn. Brazier's case, Reading Spr.


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. 37nfant.

It appears to have been allowed, that the fact of the child's Where child having complained of the injury recently after it was received, is incompetent as confirmatory evidence ; but where the child is not fit to be sworn,

a witness, her it is clear that any account which it may have given to others, evidence.

complaints not 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 Trial postponed nature and obligation of an oath, judges have often thought it on account of

, necessary, for the purposes of justice, to put off the trial of a

petency. 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 prins cipal 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 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).

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 ; oath. 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, IR. & M. 86.

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

evidence. 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. R. v. Fleming

and Windham, 2 Leach, 854. Evidence con- Where the evidence of children is admitted, it is much to be firmatory of a

wished, in order to render their evidence credible, that there child, desirable,

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. Wife witness of The party grieved is so much considered as a witness of necesnecessity sity in this, as in other personal injuries, that if one assist another against hus

man to ravish his own wife, she is admissible as a witness against band.

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 tion.

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 erime, 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, Cross-examin- On trial for rape it was held, that the prosecutrix was not com

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 evidence

held, that it was not allowable to give evidence of her having had against her.

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. General im

It is said, however, that the character of the prosecutrix as to peachment of character.

general chastity may be impeached by general evidence. C.C.R.

211. n. (a.) R. v. Clarke, 2 Stark. N. P. C. 241. Evidence in 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. Cross-examina

On an indictment for rape, it was held competent to ask prosecutrix. cutrix on cross-examination, whether since the time of the sup

posed rape she had not been seen walking the streets in a sus.

ation of prosecutrix ;


tion of prose

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 Proof of comof buggery, and of rape, and of carnally abusing girls under the pletion of crime. 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."

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 com- Necessary avermitted “ against the will” of the party. 1 Russ. 561.

ments “ against

the will;" So, the word “ ravish” is essential in the indictment, and no other term will supply the omission. Ibid.

“ Ravish ;" It has been considered, that the words “ did carnally know" are “ Carnally not essential ; but that, being appropriate and generally used, it know." would not be prudent to omit them. Ibid.

On indictment for a rape the words carnaliter cognovit were After verdict. 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 in.

dicted as prinprisoner as a principal in the first degree, and in the 2d count

cipal, both in he was charged as a principal in the second degree, by aiding and the first and abetting, and it appeared that the prisoner and others committed second degree. 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. 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 9 Geo. 4. c. 31. know and abuse any girl under the age of ten years, every such Carnal knowoffender shall be guilty of felony, and, being convicted thereof, under ten; the shall suffer death as a felon. And if any person shall unlawfully like of a girl and carnally know and abuse any girl, being above the age of ten above ten and ЗА 3

below twelve.

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