four, to wit, on, &c. with force and arms, at, &c. in and upon one F. B. K. in the peace of God and our said lord the king then and there being, unlawfully, maliciously and feloniously did make an assault, and that the said W. F. then and there, [*808] with menaces, and in a forcible and violent manner, feloniously did demand two guineas of the lawful gold coin of this realm, of the money of him the said F. B. K. of and from the said F. B. K. with a felonious intent, the said money of the said F. B. K. from the person and against the will of the said F. B. K. then and there feloniously and violently to steal, take and carry away, against the form of the statute, &c. and against the peace, * &c. And the jurors, &c. do further present, that the Second said W. F. after the said first day of May, in the year of our count. Lord one thousand seven hundred and thirty-four, to wit, on [*809} man stop a carriage and present a pistol at those who are within it, though without any demand of money, or offer to take it, he will be guilty of felony within the statute which, it will be observed, is framed in the disjunctive, 2 East P. C. 418. 8. It may, however, be collected, that the intent must be to rob the party assaulted, and that it will not suffice if the attack be made on one, and the design be to plunder another. Thus, if a highwayman calls to a coachman to stop, and presents the pistol at him, evidently intending to rob the parties within the carriage which he is driving, his offence will only be a misdemeanor at common law, 1 Leach, 18. 330. 1 East P. C. 418. It is now said that if the assault be made with an offensive weapon, a demand must be made; but if no such instrument were used, a demand is requisite: see the subsequent cases on the form of the indictment. The Indictment must exactly pursue the language of the statute, but it is not necessary that all the terms there made use of, should be inserted. Thus when the assault is the only act charged, the terms "unlawfully and maliciously," must be introduced because they are connected with it; but where a violent and forcible demand is well laid, these words will be dispensed with, as the disjunctive or intervenes, 1 East P. C. 420. The indictment must either charge an assault, with an offensive weapon with intent to rob, or a de mand with the same design, in the Third count. The like fensive weapon. (j) the said, &c. with force and arms, at, &c. aforesaid, in and of [Same as in the last precedent in the commencement.] With with an of- force and arms, at, &c. in and upon C. D. in the peace God and of our said lord the king then and there being, unlawfully, maliciously and feloniously, did make an assault with a certain offensive weapon, to wit, a pistol, which he the said A. B. in his right hand then and there had and held, with a felonious intent the monies of the said C. D. from the person and against the will of the said C. D. feloniously and violently to steal, take and carry away, against the form, &c. and against the peace, &c. (j) See another from Cro. C. C. 8th Ed, 67, 2 Stark, 404. 241 RAPE. (k) PRELIMINARY NOTES. I. On Women above the age of Consent. fence. The offence. Rape is the carnal knowledge of a female, [*810] forcibly and against her will, 3 Inst. 60. 4 Bla. Com. 210. The of The only difficulty which arises upon this definition, consists in the meaning which ought to be attributed to the words carnal knowledge; some judges having supposed that it is sufficient to shew penetration alone, while others have contended that the offence is not complete without emission; but it seems to be agreed by all that the latter without the former will not suffice. Lord Coke, in his reports, supposes both circumstances must concur, 12 Co. 37. though he does not express himself so clearly in his Institutes. Hawkins, without citing any authority or hinting a doubt, declares the same opinion, Hawk. b. 1. c. 41. s. 3. Hale, however, differs from both, and considers the case in Coke's Reports are as mistaken, 1 Hale, 628. In more modern times, prisoners have been repeatedly acquitted in consequence of the want of proof of emission, 1 East P. C. 437, 8. In one instance, on the other hand, the prisoner was found guilty under the direction of Mr. Justice Bathurst, who did not consider this fact as necessary to the consummation of the guilt. But, in Hill's case, which was argued in 1781, a large majority of judges decided that both circumstances were necessary, though Buller, Loughborough, and Heath, maintained a contrary opinion, 1 East P. C. 439. 1 Leach, 854. This then, seems to be the stronger opinion, and, at the present day, if no emission took place, it would be more safe to indict for the attempt to commit, by which means a severe punishment might be inflicted. It is the essential feature of this crime, that it must be against the will of the female on whom it is committed: but its attrocity is not mitigated by shewing that she yielded, at length, to violence, if her consent was obtained by duress or threats of murder. Hawk. b. 1. c. 41. s. 6. nor will any subsequent acquiescence on her part, do* away the guilt of the ravisher. The circumstance of the [*811] (k) As to this offence in general, see 3 Inst. 60. 1 Hale 626 to 636. Hawk. b. 1. c. 41. Com. Dig. Justices S. 2. 4 Bla. Com. 210 to 215. 1 East P. C. 433 to 449. Burn J. saries. woman's generally submitting to illicit intercourse, will not diminish the guilt of her ravisher, because she is still under the protection of the law, and must not be deprived of the opportunity of repentance, Hawk. b. 1. c. 41. s. 7. Formerly it was said to be no rape for a man to have forcible knowledge of his own concubine, 1 Hale, 628. Hawk. b. 1. c. 41. s. 7.; but the law now presumes the possibility of her return to virtue, 1 Hale, 628. A man cannot, indeed, be himself guilty of a rape on his own wife, for the matrimonial consent cannot be retracted, 1 Hale, 629; but he may be criminal in aiding and abetting others in such a design, 1 Harg. St. Tr. 388. And where a marriage is compelled and consummated by force, though the husband cannot be appealed of rape till it is dissolved, as till then it is a marriage de facto, he will be liable afterwards to be indicted, as if no ceremony had passed; though such a proceeding has seldom taken place, because the 3 Hen. VII. c. 2. prescribes a specific remedy, 1 Hale, 629, 630. Principals All who are present, of both sexes, aiding in the perpeand acces- tration of rape, are principals in the second degree, Hawk. b. 1. c. 41. s. 10. And though an infant under the age of fourteen years is so strongly presumed to be incapable of committing a rape, that no evidence will be admitted to implicate him as the actual ravisher, he may be guilty as an abettor if shewn to possess a mischievous discretion, 1 Hale, 630. In rape there may be accessaries both before and after the fact, for even if, according to Hale, it was made felony by statute, as the act is silent respecting accessaries, it must have all the accompaniments of felony at common law, 1 Hale, 631, 2. Bail. Bail. Although justices of the peace have no power to bail for rape, or indeed for any other felony, the court of king's bench will sometimes bail a party; for this is one of those offences which are more easily charged than refuted, and the accusation of which frequently arises from malice and revenge so that where the evidence seems dubious, or the rank and fortune of the defendant render it improbable that he will abscond, and his innocence seem rather to be presumed from his voluntary surrender, this court will admit him to bail, and those charged as accessaries in his crime. But they will require ample securities correspondent with the nature of the charge and the rank of the offender. Thus, on affidavits of particular circumstances, Lord Baltimore was bailed himself in four thousand pounds, and four sureties in one thousand pounds each, and the two persons charged as aiding him in four hundred pounds each, and sureties to a similar amount; they being persons of inferior condition. 4 Burr. 2179. The indictment must charge the offence to have been fe- The Inloniously committed,* and must contain the technical word dictment. [*812] ravished. 1 Hale, 632. But it does not seem so clear whether the averment that the defendant "carnally knew" is necessary to be added. It is urged that the word "ravished" includes the charge of carnal knowledge. Hawk. b. 1. c. 25. s. 36. 11 H. 4. 14. Co. Lit. 133. 2 Inst. 180. Standf. 81. But as Lord Hale and Lord Coke say, that " rapuit" and "carnaliter cognovit" ought both to be inserted, it would be very unsafe to omit the latter. 1 Hale, 632, 8, 9. 3 Inst. 60. It is usual, to conclude contrary to the form of the statute, and according to Lord Hale this is requisite. 1 Hale, 632. But this proceeds on the supposition that rape was no felony at common law, which seems erroneous, as we shall see hereafter. 1 Inst. 190. 2 Inst. 180, 433. It is, however, usual, and certainly not improper, to insert it. Evidence. Whether both penetration and emission are ne- What evicessary to constitute rape, or not; it is certain that no direct dence will evidence need be given to the latter, but that it will be presuffice. sumed on proof of the former, until rebutted by the prisoner. 2 Leach, 854. 1 East, P. C. 440. And it will suffice to prove the least degree of penetration, so that it is not necessary that the marks of virginity should be taken from the sufferer. 1 East, P. C. 438. The degree of evidence which in this case ought to satisfy the jury of the defendant's guilt, depends on the circumstances of each case, and cannot be reduced to specific rules: but some general principles have been laid down which it will always be safe to observe. Lord Hale lays down that this accusation is easily to be made, hard to be proved, and harder to be defended by the party accused, notwithstanding his innocence; and he adduces some striking instances within his own knowledge where the evidence was most positive against the defendant, when it was absolutely impossible he could be guilty; 1 Hale, 635, 6, and therefore Mr. Justice Blackstone observes, that the credibility of the testimony of the prosecutrix must be left to the jury upon the circumstances of fact by which it is attended; for instance, if the witness be of good fame, if she presently discovered the offence and made search for the offendif the party accused fled for it, these and the like are concurring circumstances which give greater probability to her evidence: but, on the other side, if she be of evil fame and stand unsupported by others; if she concealed the injury for any considerable time after she had an opportunity to complain; if the place where the fact was alleged to have been committed was where it was possible she might have been heard and she made no outcry: these and the like circumstances carry a strong but not conclusive presumption that Crim. Law, er; VOL. III. Hh |