imprisonment or both, as for a misdemeanor at common law; and the court may sentence him to hard labour during the whole or any part of the imprisonment. Id. s. 29. Ante, p. 184.

Evidence.

To maintain this indictment, it is necessary to prove

1. Penetration, as in rape. See stat. 9 G. 4, c. 31, s. 18, ante, p. 305, and the case of R. v. Lines there mentioned. If this be not proved the jury may convict the defendant of an attempt to commit the offence, 14 & 15 Vict. c. 100, s. 9, ante, p. 124, R. v. Martin, 9 Car. & P. 213, if the facts proved will warrant it; for which the defendant may now be sentenced to hard labour as well as imprisonment. 14 & 15 Vict. c. 100, s. 29. Where it appeared that the defendant effected his purpose by force and against the will of the girl, and it was objected that the offence was rape, and that the defendant could not therefore be convicted on this indictment as for a misdemeanor, Rolfe, B., refused to stop the case, and allowed it to go to the jury, who found the defendant guilty; and to a question from the judge, the jury answered that they were of opinion that the prisoner did effect his purpose by force and against the child's will: the case being reserved for the opinion of the judges, they held that the conviction was right. R. v. Neale, 1 Car. & K. 591, 1 Den. 36. By a late statute (14 & 15 Vict. c. 100, s. 12) this point is now put beyond doubt; for it is enacted that if, upon an indictment for a misdemeanor, the evidence prove a felony, the defendant shall not on that account be acquitted, unless the court think fit to discharge the jury from giving a verdict, and order the defendant to be indicted for the felony.

2. That the girl at the time was above the age of ten years, and under the age of twelve. If it appear that she was above the age of twelve, the man of course must be acquitted. But if it appear that she was under the age of ten, still the defendant, it should seem, may be convicted, unless the court discharge the jury, and order him to be indicted for the felony, as above mentioned. A variance between the age stated and that proved, in other respects, will be immaterial.

44. Indecent Assault.

Indictment.

The jurors for our Lady the Queen, upon their

oath present, that A. B., on the day of

to wit.

in the year of our Lord

did unlawfully and indecently

Р

assault a certain [girl] named C. D., and did then [here state what he did], and did then otherwise ill-treat the said C. D., and other wrongs to the said C. D. then did against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add a count for a common assault, as ante, p. 282.

Misdemeanor; fine or imprisonment or both; and, by stat. 14 15 Vict. c. 100, s. 29, hard labour during the whole or any part of the imprisonment. Formerly a count for a common assault was sufficient; but if it be intended that the defendant should be sentenced to hard labour, it must now appear on the face of the count that it was an "indecent assault," to bring it within the above statute.

Evidence.

To maintain this indictment, it must be proved that the defendant took the indecent freedoms with the person of C. D., mentioned in the indictment, or so much of them as amounts to an indictable offence. The taking of any indecent freedoms with the person of another, female or male, not amounting to rape, &c., or an attempt to commit it, against the consent of such other person, or to which he or she submits merely, but does not consent, is in law an assault; and evidence of it will maintain an indictment for a common assault. The only reason why the form of a special count is above given, is, to bring the case within the stat. 14 & 15 Vict. c. 100, s. 29, which assigns hard labour in addition to imprisonment, as the punishment for an "indecent assault." See ante, p. 184. Where, upon an indictment against a schoolmaster, for an assault with intent to commit a rape upon one of his female scholars, with a second count for a common assault, it appeared from the evidence that he did not actually attempt to commit a rape, nor perhaps intend it, but he had taken most indecent liberties with the person of the girl, and without her consent, although she did not actually offer resistance: the judges were of opinion that the evidence was fully sufficient to sustain the count for the common assault, although not the count for the assault with intent to commit a rape. R. v. Nichol, R. & R. 130.

So, where a girl went to a quack doctor to be cured of some complaint, and he, pretending that he could not otherwise judge of her illness, than by seeing her naked, pulled off her clothes being indicted for this specially, and also upon a count for a common assault, the jury being of opinion that the defendant did not really think that his seeing the girl naked would assist him in judging of her illness, found him guilty; and the judges held the conviction good upon the count for a

common assault. R. v. Rosinski, MS. and Ry. & M. 19. So, where a girl of fourteen years of age was placed by her parent under the care of the defendant, a medical man, in consequence of illness arising from suppressed menstruation; he accordingly gave her medicines, and on her coming to his house, and informing him that she was no better, he said, -"then I must try further means with you,"-and he thereupon took hold of her, laid her down in the surgery, took up her clothes, and had connexion with her, to which she made no resistance, believing, as she swore, that she was submitting to medical treatment for the ailment under which she laboured: the defendant being indicted for an assault at the quarter sessions for Dover, the Recorder told the jury that the girl being of an age to consent, if she consented knowing the nature of what the defendant was doing to her, it could not be deemed an assault, but if they were satisfied that she was ignorant of the nature of the defendant's act, and bonâ fide believed that he was, as he represented, treating her medically with a view to her cure, it was an assault; and the jury convicted him this case being brought before the criminal appeal court, the judges held that the Recorder had put the case very properly to the jury, and that the conviction was right. R. v. Case, 19 Law J. 174 m.

But where a man was indicted for carnally knowing a girl between the ages of ten and twelve, and in other counts for an assault to do so, and for a common assault: and the evidence only proved an attempt to have carnal knowledge, which hurt the girl, but which appeared to have been done perfectly with her consent: the judges held that the defendant could not be convicted for the assault with intent, &c., or for the common assault, it being done with the girl's consent; but that he might be indicted for a misdemeanor in attempting to commit the offence. R. v. Martin, 9 Car. & P. 213. So, where three boys, each under the age of fourteen years, had connexion with a girl nine years old, with her assent, and as from their ages they could not be indicted for the felony, they were indicted for an assault,-the jury found them guilty, saying at the same time that the girl was an assenting party, but that from her tender years she did not know what she was about: but the case being referred to the criminal appeal court, the judges held that as the jury had actually found that the girl consented, the conviction was wrong. R. v. Read et al., 2

Car. & K. 957. However, a girl's merely submitting to such an act, is not to be deemed conclusive of her consent to it, as it might in the case of a woman or adult girl, but the jury will have to judge from the facts of the case, whether she consented willingly, or merely submitted to it from fear, and if the latter, the defendant may be convicted. R. v. Day, 9 Car. & P. 722, per Coleridge, J.

SECTION II.

Offences against the Reputation of Individuals.

1. Libel.

Indictment.

The jurors for our Lady the Queen, upon their

to wit. oath present, that A. B., on the day of in the year of our Lord unlawfully and maliciously did write [print] and publish a certain false, scandalous and malicious defamatory libel of and concerning one C. D.; which said libel is as follows, that is to say: [Here set out the libel, with such innuendos as may be necessary to fix its meaning.] [And the jurors aforesaid upon their oath aforesaid do further present, that at the time the said A. B. so wrote, printed, and published the said false, scandalous and malicious defamatory libel, he the said A. B. knew the same to be false:] against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [As to the venue, see ante, p. 68.

1. If maliciously published, fine or imprisonment, or both, the imprisonment not to exceed one year. 6 & 7 Vict. c. 96, s. 5.

2. If maliciously published, the defendant knowing the same to be false,―imprisonment for not more than two years, and fine. Id. s. 4.

The indictment must show that the libel was written, &c. "of and concerning" the prosecutor. R. v. Marsden, 4 M. & S. 164. It must also contain the necessary innuendos— ("thereby meaning," &c.)-to fix the meaning of any expression in the libel, that may require explanation. See R. v. Burdett, 4 B. & A. 314. Sometimes it is necessary, when a libel relates to a particular transaction, to state the transaction by way of inducement, so as to render the libel intelligible, and show that it has relation to the prosecutor. It is thus introduced :—that the jurors, &c. “present, that before the commission of the offence hereinafter mentioned" [c., stating the transaction alluded to]; and that A. B., well knowing the premises, but intending to vilify and defame the said C. D., on unlawfully and maliciously

did write," &c., as in the above form.

Plea, &c.

The defendant, to any indictment for a defamatory libel, may now plead the truth of the libel, if he state in his plea that it was for the public benefit that the matters charged should be published, and show the particular fact or facts by reason of which the publication was for the public benefit. 6&7 Vict. c. 96, s. 6. And he may also at the same time plead not guilty; under which he may give in evidence any other defence, of which he might have availed himself before the passing of this Act. Id. But he shall not be allowed to prove the truth of the libel, unless he plead it. Id. The following may be form of the

Pleas of Not Guilty and a Justification.

And the said A. B., in his own proper person, cometh into court here, and having heard the said indictment read, saith that he is not guilty of the premises in the said indictment, above laid to his charge; and of this he the said A. B. puts himself upon the country, &c.

And for a further plea in this behalf, the said A. B. saith that our Lady the Queen ought not further to prosecute the said indictment against him; because he saith that it is true [&c.]; and it is true that [&c., so, alleging the truth of each of the libellous parts of the publication]; and the said A. B. in fact saith that heretofore and before the publication in the said indictment mentioned, to wit, on

[here state the fact or facts which rendered the publication of benefit to the public]; by reason whereof it was for the public benefit that the said matters so charged in the said indictment should be published. And this he the said A. B. is ready to verify; and therefore he prayeth judgment, and that by the court here he may be dismissed and discharged from the said premises in the said indictment specified.

The following may be the form of the

Replication.

And hereupon E. F. [the clerk of assize or clerk of the peace], who prosecutes for our Lady the Queen in this behalf, saith that as to the plea of the said A. B. by him firstly above pleaded, and whereof he hath put himself upon the country, he the said E. F., on behalf of our Lady the Queen, doth the like.