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knowledge against the ordinance of the Creator and order of nature by mankind with mankind, or with brute and beast, or by womankind with brute beast: 3 Inst. 58.

If the offence be committed on a boy under fourteen years of age, it is felony in the agent only: 1 Hale, 670. If by a boy under fourteen on a man over fourteen, it is felony in the patient only: Archbold, 752.

The evidence is the same as in rape, with two exceptions: first, that it is not necessary to prove the offence to have been committed against the consent of the person upon whom it was perpetrated; and secondly, both agent and patient (if consenting) are equally guilty: 5 Burn's Just. 644.

In R. v. Jacobs. R. & R. 331, it was proved that the prisoner had prevailed upon a child, a boy of seven years of age, to go with him in a back-yard; that he, then and there, forced the boy's mouth open with his fingers, and put his private parts into the boy's mouth, and emitted in his mouth; the judges decided that this did not constitute the crime of sodomy.

In one case the majority of the judges were of opinion. that the commission of the crime with a woman was indictable; also by a man with his wife: 1 Russ. 939; R. v. Jellyman, Warb. Lead. Cas. 57.

As in the case of rape, penetration alone is sufficient to constitute the offence.

The evidence should be plain and satisfactory in proportion as the crime is detestable.

Upon an indictment under this section, the prisoner may be convicted of an attempt to commit the same, section 711. The punishment would then be under the next section.

The defendant may also be convicted of either of the offences created by sections 178, 260 or 265, if the evidence warrants it; section 713. See section 261 as to indecent assaults on persons under fourteen.

Indictment for bestiality.

with a certain cow

(any animal) unlawfully, wickedly and against the order of nature had a venereal affair, and then unlawfully, wickedly and against the order of nature, with the said cow did commit and perpetrate that detestable and abominable crime of buggery.

ATTEMPT TO COMMIT SODOMY.

175. Every one is guilty of an indictable offence and liable to ten years' imprisonment who attempts to commit the offence mentioned in the next preceding section. R. S. C. c. 157, s. 2; 24-25 V. c. 100, s. 62, (Imp.).

Indictment.- in and upon one J. N. did make an assault, and him, the said J. N. did then beat, wound and ill-treat, with intent that detestable and abominable crime called buggery with the said J. N. unlawfully, wickedly, diabolically, and against the order of nature to commit and perpetrate.

Where there is consent there cannot be an assault in point of law: R. v. Martin, 2 Moo. 123. A man induced two boys above the age of fourteen years to go with him in the evening to an out of the way place, where they mutually indulged in indecent practices on each others' persons; Held, on a case reserved, that under these circumstances, a conviction for an indecent assault could not be upheld: R. v. Wollaston, 12 Cox, 180. But see now section 178, post.

But the definition of an assault that the act must be against the will of the patient implies the possession of an active will on his part, and, therefore, mere submission by a boy eight years old to an indecent assault and immoral practices upon his person, without any active sign of dissent, the child being ignorant of the nature of the assault, does not amount to consent so as to take the offence out of the operation of criminal law: R. v. Lock, 12 Cox, 244. But see now section 261, post.

The prisoner was indicted for an indecent assault upon a boy of about fourteen years of age. The boy had con

sented. Held, on the authority of R. v. Wollaston, 12 Cox, 180, that the charge was not maintainable: R. v. Laprise, 3 L N. 139. See now section 261, post.

Assault with intent to commit sodomy, section 260, post.

INCEST.

176. Every parent and child, every brother and sister, and every grandparent and grandchild, who cohabit or have sexual intercourse with each other, shall each of them, if aware of their consanguinity, be deemed to have committed incest, and be guilty of an indictable offence and liable to fourteen years' imprisonment, and the male person shall also be liable to be whipped : Provided that, if the court or judge is of opinion that the female accused is a party to such intercourse only by reason of the restraint, fear or duress of the other party, the court or judge shall not be bound to impose any punishment on such person under this section. 53 V. c. 37, s. 8.

Incest is not an offence at common law. It is a capital offence in Scotland: Wharton L. Lex. v. Incest.

In New Brunswick, by c. 145, Rev. Stat., unrepealed, it is indictable, punishment fourteen years. In Prince Edward Island also, under the Act 24 V. c. 27, unrepealed, incest is indictable, punishment twenty-one years. Also, in Nova Scotia, c. 160, R. S. N. S., punishment two years.

A verdict of common or indecent assault may be given, sections 259, 261, 265, if the evidence warants it, section 713.

Or a verdict of assault with intent to commit an indictable offence, section 263.

A verdict of attempt to commit incest might also under certain circumstances be given, section 711. In the United States, in a case of The People v. Murray, 14 Cal. 159, the court seems to have thought that such a verdict could be given. In Commonwealth v. Goodhue, 2 Met. 193, it was held that one indicted for rape on the person of his daughter might be convicted of incest. But this would not be allowed under this code on a trial for rape, except if the indictment contained also a count for incest: section 626. Then, the verdict would be on the count for incest, if the prisoner had been tried on both counts together.

The scienter must be alleged in the indictment. If one of the parties is not aware of the consanguinity he is not guilty. In Bergen v. The People, 17 Ill. 426, it was held that the defendant's admission of relationship with the person with whom he held incestuous intercourse was sufficient proof of such relationship.

Indictment.

that

on

at

A. B. did unlawfully have sexual intercourse with his daughter, C. B., then and there knowing the said C. B. to be his daughter. (Add another count with "cohabit" instead of "have sexual intercourse." And another one with “ commit incest," instead of "have sexual intercourse": Baumer v. The State, 49 Ind. 544, Hawley, American Crim. Rep. vol. 1, 354.

on

at

Indictment against father and daughter jointly.— that A. B. and C. B. father and daughter, did unlawfully have sexual intercourse (in another count, "did cohabit," and in a third one, "did commit incest") together and with one another, the said A. B. then and there knowing the said C. B. to be his daughter, and the said C. B. then and there knowing the said A. B. to be her father.

INDECENT ACTS.

177. Every one is guilty of an offence and liable, on summary conviction before two justices of the peace, to a fine of fifty dollars or to six months' imprisonment with or without hard labour, or to both fine and imprisonment, who wilfully

(a) In the presence of one or more persons does any indecent act in any place to which the public have or are permitted to have access; or

(b) Does any indecent act in any place intending thereby to insult or offend any person. 53 V. c. 37, s. 6.

Section 6 of 53 V. c. 37, is unrepealed. Sub-section (b) is given as new by the Imperial Commission. See Archbold, 1051; R. v. Holmes, Dears. 207; R. v. Wellard, 14 Q. B. D. 63.

On an indictment at common law for indecent exposure of the person, Held, that the exposure must be in an open and public place, but not necessarily generally public and open; if a person indecently exposed his person in a private

yard, so that he might be seen from a public road where there were persons passing, an indictment would lie R. v. Levasseur, 9 L. N. 386; Ex parte Walter, Ramsay's App. Cas. 183; R. v. Harris, 11 Cox, 659.

See R. v. Reed, 12 Cox, 1, post, under section 208; R. v. Crunden, Warb. Lead. Cas. 99.

ACTS OF GROSS INDECENCY BY A MALE PERSON WITH ANOTHER MALE. 178. Every male person is guilty of an indictable offence and liable to five years' imprisonment and to be whipped who, in public or private, commits, or is a party to the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person. 53 V. c. 37, s. 5. 48-49 V. c. 69, s. 11 (Imp.).

Fine and sureties, section 958. Verdict of attempt on an indictment to commit the offence in certain cases, section

711; see R. v. Jellyman, Warb. Lead. Cas. 57.

The facts proved in R. v. Wollaston, 12 Cox, 180, would now be indictable under this section. So would the facts proved in R. v. Rowed, 3 Q. B. 180. A verdict of attempt to * commit sodomy cannot be given on an indictment under this section. The indictment may simply charge that

on

at

A. B., a male person, in public (in another count "in private") committed (or was a party to the commission of), (or procured), (or attempted to procure the commission of) an act of gross indecency with C. D., another male person. An indictment charging an attempt by a male person to commit an act of gross indecency with another male person lies under section 529, post. Also under section 260, for an indecent assault by a male person on another male person.

PUBLISHING OBSCENE MATTER. (New).

179. Every one is guilty of an indictable offence and liable to two years' imprisonment who knowingly, without lawful justification or excuse

(a) Publicly sells, or exposes for public sale or to public view, any obscene book, or other printed or written matter, or any picture, photograph, model or other object, tending to corrupt morals; or

(b) Publicly exhibits any disgusting object or any indecent show;

(c) Offers to sell, advertises, publishes an advertisement of, or has for sale or disposal any medicine, drug or article intended or represented as a means of preventing conception or causing abortion.

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