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he escape through the breach so made, he cannot be indicted for the breaking, but only for the escape. 2 Hawk. c. 18, s. 10.

No breach of prison will amount to felony, unless the prisoner actually escape. 2 Hawk. c. 18, s. 12; 2 Inst. 590; 1 Hale, 611.

A prisoner convicted of felony made bis escape over the walls of the prison, in accomplishing which he threw down soine bricks from the top of the wall, which had been placed there loose, without mortar, in the form of pigeon holes, for the purpose of preventing escapes. Being convicted of prison breaking, a doubt arose whether there was such force as to constitute that offence, but the judges were unanimously of opinion that the conviction was right. Haswell's case, Russ. and Ry. 458.

Punishment.] Although to break prison and escape, when lawfully committed for any treason or felony, still remains felony as at common law; the breaking prison when lawfully confined upon any other inferior charge, is punishable only as a high misdemeanor by fine and imprisonment. 4 Bl. Com. 130; 2 Hawk. c. 18, s. 21.

By the 7 and 8 Geo. 4, c. 28, s. 8, “every person convicted of any felony not punishable with death, shall be punished in the manner prescribed by the statute or statutes especially relating to such felony ; and that every person convicted of any felony for which no punishment hath been, or hereafter may be especially provided, shall be deemed to be punishable under this act, and shall be liable, at the discretion of the court, to be transported beyond the seas for the term of seven years, or to be imprisoned for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped (if the court shall so think fit) in addition to such imprisonment."

By s. 8, in cases of imprisonment, the court may award hard labor and solitary confinement; but the latter is not to exceed one month at a time, and three months in any one year; see ante, p. 348.

Conveying tools, &c. to prisoners to assist in escape.) By the 4 Geo. 4, c. 64, s. 43, "if any person shall convey or cause to be conveyed into any prison to which that act shall extend, any mask, vizor, or other *disguise, or any instrument or arms proper to facilitate the es- [ *797 ] cape of any prisoners, and the same shall deliver or cause to be delivered to any prisoner in such prison, or to any other person there for the use of any such prisoner, without the consent or privity of the keeper of such prison, every such person shall be deemed to have delivered such vizor or disguise, instrument or arins, with intent to aid and assist such prisoner to escape, or attempt to escape ; and if any person shall by any means whatever aid and assist any prisoner to escape, or in attempting to escape from any prison, every person so offending, whether an escape be actually made or not, shall be guilty of felony, and being convicted thereof, shall be transported beyond the seas for any term not exceeding fourteen years.'

As to aiding escapes from prison, see also the 16 Geo. 2, c. 31.

Special enactments.] The offence of prison breach is made the subject of special provisions in various statutes. Thus by the 59 Geo. 3, c. 11, prison breaking from the Penitentiary at Milbank, was made punishable by additional imprisonment for three years, and in case of a second offence, with death ; but by the 7 Wm. 4 and i Vict. c. 91, the punishment of death is abolished, and the party is liable to be transported for life, or for not less than fifteen years, or to be imprisoned for any term not exceeding three years.

RAPE.

Statutes respecting

797 | Accessarics Proofs with regard to the person coinmit- Competency of witnesses ting the offence

798 Of the unlawful carnal knowledge of feProofs with regard to the person on whom

male children the offence is committed

798 | Assault with intent to ravish Proof of the offence

799

Statutes respecling.) Rape is defined by Lord Hale, to be the carnal knowledge of any woman, above the age of ten years, against her will ; and of a woman child under the age of ten years, with or against her will (1)

1 Hale, P. C. 628; 3 Inst. 90; Hawk. P. C. b. 1, c. 41, s. 2. The offence has been the subject of various statutory provisions, (Westm. 1, c. 13; Westm. 2, c. 34 ; 19 Eliz. c. 7, s. 1.) [ *798 ] *Now by the 9 Geo. 4, c. 31, s. 16, “ every person convicted of the crime of rape shall suffer death as a felon."

This sentence may be recorded; ante, p. 224.

Proof with regard to the person committing the offence.) An infant under the age of fourteen years is presumed by law unable to commit a rape, but he may be a principal in the second degree, as aiding and assisting, if it appear by the circumstances of the case that he had a mischievous intent. 1 Hale, P. C. 630.

So Vaughan, B., held that a boy under fourteen could not be convicted of an assault with intent to comınit a rape. Elderhaw's case, 3 C. and P. 396 (a). So Gaselee, J., after consulting Lord Abinger, C. B., ruled that the presumption of law, that a boy under fourteen years of age is unable to commit a rape, is not affected by the 9 Geo. 4, c. 31, ss. 16 and 17. Groombridge's case, 7 C. and P. 582 (b). So where a lad under fourteen was charged with an assault lo commit a rape, Patteson, J.,

“I think that the prisoner could not in point of law be guilty of the offence of assault with intent to commit a rape, if he was at the time of the offence under the age of fourteen. And I think also that if he was under that age, no evidence is admissible to show that in point of fact he could commit the offence of rape.” Phillips' case, 8 C. and P. 736 (C).

said,

(1) People v. Stamford, 3 Wheeler's C. C. 152. People o. Croucher, Id. 42.
(a) Eng. Com. L. Rep. xiv. 367. (6) Id. xxxii. 641. (c) Id. xxxviii. 610.

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Although a husband cannot be guilty of a rape upon his own wife, yet he may be guilty as a principal in assisting another person to commit a rape upon her. Lord Audley's case, 1 St. Tr. 387, fo. ed. 1 Hale, P. C. 629. The wife in this case is a competent witness against her husband. Id.

Proof with regard to the person upon whom the offence is committed.] It must appear that the offence was committed against the consent of the woman; but it is no excuse that she yielded at last to the violence, if her consent was forced from her by fear of death, or by duress. Nor is it any excuse, that she consented after the fact, or that she was a common strumpet; for she is still under the protection of the law, and may not be forced ; or that she was first taken with her own consent, if she was afterwards forced against her will; or that she was a concubine to the ravisher, for a woman may forsake her unlawful course of life, and the law will not presume her incapable of amendment. All these circumstances, however, are material, to be left to the jury in favor of the accused, more especially in doubtful cases, and where the woman's testimony is not corroborated by other evidence. 1 East, P. C. 444; 1 Hale, 628, 631; Hawk. P. C. b.,1, c. 41, s. 2.

The opinion, that, where the woman conceived, it could not be rape, because she must have consented, is now completely exploded. 1 East, P. C. 445; 1 Russell, 557.

Whether carnal knowledge of a woman, who, at the time of the commission of the offence, supposed the man to be her husband, is a rape, came in question in the following case. The prisoner was indicted for a burglary, with intent to commit a rape. It appeared *that the [ *799 ] prisoner got into the woman's bed, as if he had been her husband, and was in the act of copulation, when she made the discovery ; upon which, and before completion, he desisted. The jury found that he had entered the house with intent to pass for her husband, and to have connection with her, but not with the intention of forcing her, if she made the discovery. The prisoner being convicted, upon a case reserved, four of the judges thought that the having carnal knowledge of a woman, whilst she was under the belief of its being her husband, would be a rape ; but the other eight judges thought that it would not ; several of the eight judges intimated that if the case should occur again, they would advise the jury to find a special verdict (1). Jackson's case, Russ. and Ry. 487 (a)..

So where it appeared from the evidence of the prosecutrix, that the prisoner bad got into her bed while she was asleep, and that she had allowed him to have connection with her, believing him to be her husband, and that she did not discover who he was till after the connection was over ; Alderson, B., held that the charge of rape could not be maintained ; but the prisoner was found guilty of an assault under the 7 Wm. 4 and 1 Vict. c. 85, s. 11, ante, p. 264. The learned Baron observed, “In an assault of this nature there need not be resistance, the fraud is enough. If resistance is prevented by the fraud of the man who pretends to be the husband, that is suflicient." Williams's case, 8C. and P. 286 (b). Also

(1) It seems, that it is as much a rape when effected thus by stratagem, as by force. People v. Barton, i Wheeler's C. C. 378, 381, n. Comm. v. Fields, 4 Leigh, 618.

(a) 1 Eng. C. C. 487. () Eng. Cem. L. Rep. xxxiv. 392.

in Saunders' case, Ibid. 265 (a), where the circumstances were nearly similar, the prisoner was found guilty of an assault under the directions of Gurney, B.

Proof of the offence. By the 9 Geo. 4, c. 31, s. 18, reciting that upon trials for the crimes of buggery and of rape, and of carnally abusing girls under the 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, it is 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."

In a case which occurred soon after the passing of this statute, Taunton, J., ruled that, notwithstanding the above provision, it was still necessary, in order to complete the offence, that all which constitutes carnal knowledge should have happened, and that the jury must be satisfied, from the circumstances, that emission took place. Russell's case, 1 Moo. and Rob. 122. But this decision has been repeatedly overruled, by Hullock, B., in Jennings's case, 4 C. and P. 249 (6); by Park, J., in Cozins's *case, 6 C. and P. 351 (c); and, lastly, upon two cases reserved, Reekspear's case, 1 Moody, C. C. 342 (d), and Cox's case, Id. 337 (e), 5 C. and P. 297 (f); in which it was held by the judges, that proof of penetration is sufficient, notwithstanding emission be negatived.

In a more recent case, in which it was suggested by the counsel for [ *800 ] *the defence that Cox's case was not argued before the judges by counsel, and that doubts of the propriety of the decision were said to be entertained by the two judges not present; Patteson, J., said, " It is true that the case was not argued, but still I cannot act against their decision."

The learned judge afterwards said that if it should prove necessary the case should be further considered. The prisoner, however, was acquitted. Brook's case, 2 Lew. C. C. 267.

It has been made a question, upon trials for this offence, how far the circumstance of the hymen not being injured, is proof that there has been no penetration. In one case, where it was proved not to have been broken, Ashurst, J., left it to the jury to say whether penetration was proved; for that if there were any, however small, the rape was complete in law. The prisoner being convicted, the judges held the conviction right. They said that, in such cases, the least degree of penetraton was sufficient, though it might not be attended with the deprivation of the marks of virginity. Russen's case, 1 East, P. C. 438. But in a late case, Gurney, B., said "I think that if the hymen is not ruptured, there is not a sufficient penetration to constitute the offence. I know that there have been cases in which a less degree of penetration has been held to be sufficient; but I have always doubted the authority of those cases.” Gammon's case, 5 C. and P. 321 (8). So in Beck's Medical Jurisprudence, p. 53, it is said that it would be difficult to support an accusation of rape where the hymen is found

entire (1).

(1) State v. Le Blanc, 1 Const. Rep. 354. Penn. o. Sullivan, Addis. 143. (a) Eng. Com. L. Rep. xxxiv. 383. (b) Id xix. 368. (c) ld. xxv. 434. (d) 2 Eng. C.

C. 342. (e) Id. 337. (f) Eng. Com. L. Rep. xxiv. 328. (g) Id. 339.

In a late case, where the prisoner was indicted for carnally knowing a child under ten years of age, the surgeon stated that her private parts internally were very much inflamed, so much so that he was not able to ascertain whether the hymen had been ruptured or not. Bosanquet, J., (Coleridge and Coltman, JJ. being present) said, “ It is not necessary in order to complete the offence, that the hymen should be ruptured, provided that it is clearly proved that there was penetration ; but where that which is so very near to the entrance has not been ruptured, it is very difficult to come to the conclusion that there has been penetration so as to sustain a charge of rape.” The prisoner was found guilty of an assault. M'Rue's case, 8 C. and P. 641(a). But see as to this post.

If the evidence be insufficient to support the charge of rape the prisoner may be convicted of an assault ; see ante, p. 264, and Williams' case, ante,

p. 799.

Accessaries.) An indictment, charging the prisoner both as principal in the first degree, and as aiding and abetting other men in committing a rape, was held, after conviction, to be valid, upon the count charging the prisoner as principal. Upon such an indictment, it was held that evidence might be given of several rapes on the same woman at the same time, by the prisoner and other men each assisting the other in turn, without putting the prosecutor to elect on which count to proceed. · Folke's case, 1 Moody, C. C. 354 (6).

So a count charging A, with a rape, as a principal in the first degree, *and B. as principal in the second degree, may be joined with [ *801 ] another count charging B. as principal in the first degree, and A. as principal in the second degree. Gray's case, 7 C. and P. 164 (c).

x

Competency and credibility of witnesses. The party ravished, says Lord Hale, may give evidence under oath, and is in law a competent witness; but the credibility of her testimony, and how far 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. For instance, if the witness be of good fame, if she presently discovered the offence, and made pursuit after the offender, showed circumstances and signs of the injury, (whereof inany are of that nature that women only are the most proper examiners and inspectors ;) if the place, in which the fact was done, was 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; 1 East, P. C. 448. On the other hand, if she concealed the injury for any considerable time, after she had an opportunity to complain ; if the place, where the fact was supposed to be committed, was near to inhabitants, or the common recourse or passage of passengers, and she made no outcry when the fact was supposed to be done, where it was probable she might have been heard by others; such circumstances carry a strong presumption that her testimony is false (1). Ibid. The fact that the prosecutrix made a complaint soon after the transaction is admissible, but

(1) See The State o. De Wolf, 8 Conn. 93. (a) Eng. Com. L. Rep. xxxiv. 562. (6) 2 Eng. C. C. 34. (c) Eng. Com. L. Rep.

xxxi 480.

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