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N., an infant under the age of ten years, to wit, of the age of nine years, in the peace of God and our lord the King then and there being, feloniously did make an assault, and her the said A. N. then and there feloniously did unlawfully and carnally know and abuse: against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity.

Felony, death. 18 El. c. 7. s. 4.

Evidence.

The evidence is the same as in rape; with this exception, that it is immaterial whether the act was done with or without the consent of the female. The child may be a witness, if she appear sufficiently to understand the nature and moral obligation of an oath. See ante, p. 94. She must be proved to be under ten years of age.

Indictment for an assault with intent to commit a rape.

Commencement, as ante, p. 241.] did make an assault, and her the said A. N. then and there did beat, wound, and ill treat, with intent her the said A. N. violently and against her will, then and there feloniously to ravish and carnally know; and other wrongs to the said A. N. then and there did: to the great damage of the said A. N., and against the peace of our lord the King, his crown and dignity.

Misdemeanor at common law, punishable with fine and impri

sonment.

Evidence.

Prove an attempt to commit a rape, the offence being incomplete for want of evidence of emission, or the like. If upon this indictment the prosecutrix were to prove a rape actually committed, the defendant must be acquitted. See R. v. Harmwood, 1 East, P. C. 411. 440.

Indictment for an assault with intent carnally to know a child under ten years.

Commencement, as in the precedent ante, p. 241.] did make an assault, and her the said A N. then and there did beat, wound, and ill treat, with intent her the said A. N. then and there feloniously and unlawfully carnally to know and abuse; and other wrongs, &c. as in the last precedent.

Misdemeanor at common law, punishable with fine and impri

sonment.

Evidence.

Prove an attempt to have a connexion with A. N. an infant under ten years, the offence being incomplete for want of evidence of emission, or the like. Vide supra.

SECT. 7.

Sodomy, &c.

Indictment for Sodomy.

Commencement, as ante, p 259.] in and upon one J. N. then and there being, feloniously did make an assault, and then and there feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair with the said J. N., and then and there carnally knew him the said J. N., and then and there feloniously, wickedly, diabolically, and against the order of nature, with the said J. N. did commit and perpetrate that detestable and abominable crime of buggery (not to be named among Christians): against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity.

Felony, death. 27 H. 8. c. 6. 5 El. c. 17.

Evidence.

The evidence is the same as in rape; see ante, p. 259; with two exceptions: 1st, 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 2dly, both agent and patient (if consenting) are equally guilty. In R. v. Wiseman, Fortesc. 91, where the defendant was indicted for having committed this offence with a woman, a majority of the judges held that this was within the statute, but two or three of them held that it was not; no opinion was publicly given. If it be committed on a boy under fourteen years of age, it is felony in the agent only; 1 Hale, 670. 3 Inst. 59; and the same, it should seem, as to a girl under twelve.

Indictment for bestiality.

Commencement, as unte, p. 259.] county aforesaid, with a certain cow, then and there being, feloniously, wickedly, diabolically, and against the order of nature, had a venereal affair, and then and there feloniously, wickedly, diabolically, and

against the order of nature carnally knew the said cow; and then and there feloniously, wickedly, diabolically, and against the order of nature, with the said cow did commit and perpetrate that detestable and abominable crime of buggery (not to be named amongst Christians): against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity.

Felony, death. 27 H. 8. c. 6. 5 El. c. 17. The carnal knowlege is proved in the same manner as in rape or sodomy. See ante, p. 259. 262.

Indictment for an assault, with intent to commit sodomy.

Commencement, as ante, p. 241.] in and upon one J. N., in the peace of God and our lord the King then and there being, did make an assault, and him the said J. N. then and there did beat, wound, and ill treat, with intent that detestable and abominable crime (not to be named among Christians) called buggery, with the said J. N. then and there feloniously, wickedly, diabolically, and against the order of nature to commit and do to the great displeasure of Almighty God, to the great damage of the said J. N., and against the peace of our lord the King, his crown and dignity.

Misdemeanor at common law, punishable with fine and impri

sonment.

Evidence.

Prove an attempt to commit sodomy, the offence being incomplete for want of evidence of emission, or the like. If, however, the complete offence of sodomy be proved, the defendant must be acquitted.

BOOK II.

PLEADING AND EVIDENCE IN PARTICULAR

CASES.

PART II.

OFFENCES OF A PUBLIC NATURE.

CHAPTER I.

Offences against the King, and his government.

SECT. 1. High treason.

2. Coining.

3. Seaition and blasphemy.

4. Administering unlawful oaths.

5. Inciting to mutiny.

6. Embezzling the King's stores.

SECT. 1.

High treason.

Indictment for compassing the King's death.

Middlesex to wit: The jurors for our lord the King upon their oath present, that J.S. late of the parish of B. in the county of M., labourer, a subject of our said lord the King then and there being, not regarding the duty of his allegiance, nor having the fear of God in his heart, but being moved and seduced by the instigation of the devil, as a false traitor against our said lord the King, and wholly withdrawing the allegiance,

fidelity, and obedience which every true and faithful subject of our said lord the King, should, and of right ought to bear towards our said lord the King, on the third day of May, in the third year of the reign of our sovereign lord George the fourth, and on divers other days as well before as after, with force and arms, at the parish aforesaid in the county aforesaid, maliciously and traitorously, together with divers other false traitors to the jurors aforesaid unknown, did compass, imagine, devise, and intend to depose our said lord the King from the royal state, title, power, and government of this realm, and from the style, honour, and kingly name of the imperial crown thereof, and to bring and put our said lord the King to death and the said treasonable compassing, imagination, device, and intention, then and there maliciously and traitorously did express, utter, declare, and evince, by divers overt acts and deeds hereinafter mentioned, that is to say: IN ORDER TO FULFIL, PERFECT, AND BRING TO EFFECT his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he the said J. S., as such false traitor as aforesaid, afterwards, to wit, on the said third day of May in the year aforesaid, and on divers other days as well before as after, with force and arms, at the parish aforesaid in the county aforesaid, maliciously and traitorously did conspire, consult, consent, and agree with one A. B., C. D., and divers other false traitors to the jurors aforesaid unknown, to raise, levy, and make insurrection, rebellion, and war within this kingdom, against our said lord the King: AND FURTHER TO FULFIL, PERFECT, AND BRING TO EFFECT his most evil and wicked treason, and treasonable compassing, imagination, device, and intention aforesaid, he the said J. S., as such false traitor as aforesaid, afterwards, to wit, [&c. &c. so proceeding to state other overt acts, in the same manner; and then conclude the count thus:] in contempt of our said lord the King and his laws, to the evil example of all others in the like case offending, contrary to the duty of the allegiance of him the said J. S., against the form of the statute in such case made and provided, and against the peace of our lord the King, his crown and dignity.

It may be satisfactory, in this place, to enumerate the several acts which have been decided, or which have been deemed by writers upon the subject, to be sufficient overt acts of compassing the death of the King.

Every thing wilfully or deliberately done or attempted, whereby the King's life may be endangered, is an overt act of compassing his death. Fost. 195. Killing the King, is an overt act of compassing his death, and was so laid in the case of the

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