« EdellinenJatka »
the particulars of her complaint can not be given in evidence ; see ante,
A strict caution is given by Lord Ilale, with regard to the evidence for the prosecution in cases of rape: "An accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent." 1 Hale, 635.
Gencral evidence of the prosecutrix's bad character is admissible, ante, p. 88; but not evirlence that she had connection with a particular person. Hodgson's case, Russ. and Ry. 218(a); Clarke's case, 2 Stark. N. P. 244 (b), ante, p. 88; thougl: the prosecutrix may be asked whether she has not been formerly connected with the prisoner. Ante, p. 88. So Williams, J. held that the prosecutrix may be asked, whether previous to the commission of the alleged rape, the prisoner has not bad intercourse with her, with her own consent. Martin's case, 6 C. & P. 562 (C).
On a trial for rape, Park, J., (after consulting Mr. Justice James Parke) allowed the prisoner's counsel to ask the prosecutrix, with a view to contradict her, whether since the alleged offence she had not walked in Oxford-street to look out for men, and whether she had not walked in High-street with a woman reputed to be a common prostitute. Barker's case, 3 C. & P. 589 (d).
Of the unlawful carnal knowledge of female children.] The unlaw[ *802 ] ful carnal knowledge of female children, under the age of *ten years, was declared to be felony, without benefit of clergy, by the 18 Eliz. c. 7; but that act being repealed by the 9 Geo. 4, c. 31, it is enacted by the latter statute, (sect. 17,) " that if any person shall unlawfully and carnally know and abuse any girl under the age of ten years, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon; and if any person shall carnally know and abuse any girl, being above the age of ten years and under the age of twelve years, every such offender shall be guilty of a misdemeanor, and, being convicted thereof, shall be liable to be imprisoned, with or without hard labor, in the common gaol or house of correction, for such term as the court. shall award.”
Upon an indictment for carnally knowing a girl under ten years of age, the proofs for the prosecution will be, 1, tlie commission of the offence ; 2, that the child is under ten years of age.
The child herself, however tender her age, if capable of distinguishing between right and wrong, may be examined in proof of the offence. Brazier's case, 1 East, P. C. 433, ante, p. 114; but her declarations are inadmissible ; Tucker's case, Phill. Ev. 6, 8th ed., ante, p. 115; though the fact of her having complained of the injury, recently after its having been received, is evidence in corroboration. Brazier's case, supra ; see ante, p. 23. The propriety of corroborating the testimony of the infant, in a case of this kind, has been remarked upon by Mr. Justice Blackstone. 4 Com. 214, ante, p. 115 (1). As to putting off the trial, for the purpose of having the infant witness instructed, vide ante, p. 115.
The age of the child - must be proved. Where the offence was committed on the 5th of February, 1832, and the father proved that, on his
(1) State o. Le Blanc, 1 Const. Rep. 354. 1 Eng. C. C. 218. (6) Eng. Com. L. Rep. iii. 333. (©) Id. xxv. 544.
(d) Id. xiv. 467.
return home on the 9th of February, 1822, after an absence of a few days, he found the child had been born, and was told by the grandmother that she had been born the day before, and the register of baptism showed that she had been baptized on the 9th of February, 1822, this evidence was held insufficient to prove the age. Wedge's case, 5 C. and P. 298 (a).
In Banks' case, S C. and P. 574 (6), Patteson, J., held that the offence of carnally knowing a child under ten years of age is not an offence which includes an assault within the 7 Wm. 4 and 1 Vict. c. 85, s. 11, see ante, p. 264; and that the jury must either find the prisoner guilty of the whole charge, or acquit him. In M'Rue's case, however, where the prisoner was charged with a similar offence, before Bosanquet, Coleridge, and Coltman, JJ., he was found guilty of an assault under that act. See ante, p. 800.
Where the prisoner was charged with the misdemeanor of having carnal knowledge of a girl between ten and twelve years old, Lord Abinger, C. B., ruled that the prisoner could not be found guilty of an assault, as the consent of the girl put an end to the charge of assault. Meredith's case, 8 C. and P. 589 (c).
Assault with intent to ravish.) Upon an indictment for this offence, the evidence will be the same as in rape, with the exception of the proof of the commission of the offence.
*A boy under fourteen cannot be found guilty of an assault [ *803) with intent to commit a rape. See ante, p. 798.
On an indictment for an assault with intent to coinmit a rape, Patteson, J., held that evidence of the prisoner having, on a prior occasion, taken liberties with the prosecutrix, was not receivable to show the prisoner's intent.
In the same case, the learned judge held, that in order to convict on a charge of assault with intent to commit a rape, the jury must be satisfied, not only that the prisoner intended to gratify his passions on the person of the prosecutrix, but that he intended to do so at all events, and notwith, standing any resistance on her part. Lloyd's case, 7 C. and P. 318 (d).
If upon an indictment for this offence the prosecutrix prove a rape actually committed, the defendant must be acquitted. Harmond's case, 1 East, P. C. 411, 440.
(a) Eng. Com. L. Rep. xxiv. 539. (b) Id. xxxiv. 531. (c) Id. 539. (d) Id. xxxii. 523,
RECEIVING STOLEN GOODS.
Common law and former statutes
803 Proof of guilty knowledge .811 Statute 7 & 8 Geo. 4, c. 29
804 Proof where the prisoner is charged Punishment
804 as principal and receiver in differProof of the larceny by the principal 805 ent counts
813 Proof of the receiving
807 Proof by the prisoner of innocence of Distinction between receiving
813 and stealing
- 807 | Witnesses-competency of principal felon 813 Joint receiving 809 Venue
· 813 Proof of the particular goods received 811
Common law and former statutes. Before the 3 & 4 W. & M.c. 9, receivers of stolen goods, unless they likewise received and harbored the thief, were guilty only of a misdemeanor ; but by that statute they were made accessaries after the fact, and consequently felons (1). By the I Anne, s. 2, c. 9, the receiver might be prosecuted for a misdemeanor, [ *804 ] though the principal was not before *convicted ; and by the 5 Anne, c. 31, he might be so prosecuted, though the principal could not be taken. The offence was again changed to felony by 31 Geo. 3, c. 24, s. 3. These acts being now repealed, their provisions are consolidated in the 7 & 8 Geo. 4, c. 29.
Statute 7 & 8 Geo. 4, c. 29—punishment.) By the 54th section of that statute, "if any person shall receive any chattel, money, or valuable security, or other property whatsoever, the stealing or taking whereof shall amount to a felony, either at common law, or by virtue of that act, such person knowing the same to have been feloniously stolen or taken, every such receiver shall be guilty of felony, and may be indicted and convicted, either as an accessary after the fact, or for a substantive felony; and in the latter case, whether the principal felon shall or shall not have been previously convicted, or shall or shall not be amenable to justice, and every such receiver, howsoever convicted, shall be liable, at the discretion of the court, to be transported beyond the seas for any term not exceeding fourteen years, nor less than seven years, or to be imprisoned for any term not exceeding three 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; provided always, that no person, howsoever tried for receiving as aforesaid, shall be liable to be prosecuted a second time for the same offence."
By s. 55, "if any person shall receive any chattel, money, valuable security, or other property whatsoever, the stealing, taking, obtaining or converting whereof is made an indictable misdemeanor by that act, such person knowing the same to have been unlawfully stolen, taken, obtained or
(1) 1 Wheeler's C. C. 202.
converted, every such receiver shall be guilty of a misdemeanor, and may be indicted and convicted thereof, whether the person guilty of the principal misdemeanor shall or shall not have been previously convicted thereof, or shall or shall not be amenable to justice ; and every such receiver shall, on conviction, 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. 60, for the punishment of receivers, where the stealing, &c., is punishable on summary conviction, it is enacted, " that where the stealing or taking of any property whatsoever is punishable on summary conviction, either for every offence, or for the first and second offence only, or for the first offence only, any person who shall receive any such property, knowing the same to be unlawfully come by, shall, upon conviction thereof before a justice of the peace, be liable, for every first, second, or subsequent offence of receiving, to the same forfeiture and punishment to which a person guilty of a first, second, or subsequent offence of stealing or taking such property is by that act made liable.”
*To support an indictinent upon the 7 and 8 Geo. 4, c. 29, s. [ *805 ] 54, the prosecutor must prove, 1, the stealing of the goods by the principal felon, if it be so stated in the indictment, or his conviction for that offence, if it be averred ; 2, the receiving of the goods by the prisoner ; 3, that the goods so received were those previously stolen ; 4, the guilty knowledge of the prisoner.
Proof of the larceny by the principal.] It is not necessary to state, in the indictment, the name of the principal felon, and the usual practice in an indictment against a receiver for a substantive felony is, merely to state the goods to have been “before then feloniously stolen," &c., without stating by whom. See Arch. Pl. 257, 7th ed.
Where it was objected to a count charging the goods to have been stolen by "a certain evil disposed person," that it ought either to have stated the name of the principal, or else that he was unknown, Tindal, C. J., said, the offence created by the act of parliament is not the receiving the stolen goods froin any particular person, but receiving them, knowing them to have been stolen. The question, therefore, is, whether the goods were stolen, and whether the prisoner received them, knowing them to have been stolen? Jervis's case, 6 C. and P. 156 (a). See also Wheeler's case, 7 C. and P. 170 (6), post, p. 811. Where the goods had been stolen by some person unknown, it was formerly the practice to insert an averment to that effect in the indictment, and such averment was held good. Thomas's case, 2 East, P. C. 781. But where the principal was known, the name was stated according to the truth. 2 East, P. C. 781. Where the goods were averred to have been stolen by persons unknown, a difficulty sometimes arose as to the proof, the averment being considered not to be proved, wbere it appeared that in fact the principals were known. Thus where, upon such an indictment, it was proposed to prove the case by the evidence of the principal himself, who had been a witness before the grand jury, Le Blanc, J., interposed, and directed an acquittal. He
(@) Eng. Com. L. Rep. xxv. 330. (b) Id. xxxii. 483.
said he considered the indictment wrong in stating that the property had been stolen by a person unknown; and asked how the person who was the principal felon could be alleged to be unknown to the jurors, when they had him before them, and his name was written on the back of the bill? Walker's case, 3 Campb. 264.
It is difficult to reconcile this decision with the resolution of the judges in the following case.
The indictment stated that a certain person or persons, to the jurors unknown, stole the goods, and that the prisoner received the same knowing them to have been feloniously stolen. The grand jury also found a bill
, charging one Henry Moreton with stealing the same goods, and the prisoner with receiving them. It was objected that the allegation, that the goods were stolen by a person unknown, was negatived by the other record, and that the prisoner was entitled to an acquittal. The prisoner being convicted, the point was reserved, and the
*806 ) judges held *the conviction right, being of opinion that the finding by the grand jury of the bill, imputing the principal felony to Moreton, was no objection to the second indictment, although it stated the principal felony to have been committed by certain persons to the jurors unknown. Bush's case, Russ. and Ry. 372 (a).
It has been doubted whether, where the indictment alleges that the prisoner received the goods in question from a person narned, it must be proved that the receipt was in fact from that person. See marginal note, Messingham's case, 1 Moody, C. C. 257 (6).
But where A. B. was indicted for stealing a gelding, and C. D. for receiving it, knowing it to have been “so feloniously stolen as aforesaid ;" and A. B. was acquitted, the proof failing as to the horse having been stolen by him; Patteson, J., held that the other prisoner could not be convicted upon that indictment.
that indictment. Woolford's case, i Moo. and R. 384. So where the indictment stated that the prisoner received the goods from the person who stole them, and that the person who stole them was a person to the jurors unknown, and it appeared that the person who stole the property handed it to J. S., who delivered it to the prisoner ; Parke, J., held, that on this indictment it was necessary to prove that the prisoner received the property from the person who actually stole it, and would not allow it to go to the jury to say, whether the person from whom he was proved to have received it, was an innocent agent or not of the thief. Elsworthy's case, 1 Lewin, C. C. 117.
Where the indictment states a previous conviction of the principal, such conviction must be proved by the production of an examined copy of the record of the conviction, and it is no objection to such record, that it appears therein that the principal was asked if he was (not is) guilty ; that it does not state that issue was joined; or how the jurors were returned, and that the only award against the principal is, that he be in mercy, &c. Baldwin's case, Russ. and Ry. 241 (c); 3 Campb. 265; 2 Leach, 928, (n.) But if the indictment state not the conviction but the guilt of the party, it seems doubtful how far the record of conviction would be evidence of that fact. Turner's case, 1 Moody, C. C. 347 (d), ante, p. 50. The opinion of Mr. Justice Foster, however, is in favor of the affirmative. Where the accessary, he says, is brought to trial after the conviction of his principal, it is not necessary to enter into a detail of the
(a) 1 Eng. C. C. 372. (b) 2 Id. 257. (c) 1 Id. 241. (d) 2 Id. 347.