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 (b); 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 (ƒ); 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 (g). 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. v. Sullivan, Addis. 143. (a) Eng. Com. L. Rep. xxxiv. 383. (b) Id xix. 268. (c) ld. xxv. 434. (d) 2 Eng. C. C. 342. (e) Id. 337. (f) Eng. Com. L. Rep. xxiv. 328. (g) Id. 339.

800

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, Moody, C. C. 354 (b).

1

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).

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 many 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. i 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;
the place, where the fact was supposed to be committed, was near to in-
habitants, 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 v. De Wolf, 8 Conn. 93.

(a) Eng. Com. L. Rep. xxxiv. 562. (b) 2 Eng. C. C. 354. (c) Eng. Com. L. Rep.

xxxii. 480.

Χ

the particulars of her complaint can not be given in evidence; see ante, p. 23.

A strict caution is given by Lord Hale, 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 inuocent." 1 Hale, 635.

General evidence of the prosecutrix's bad character is admissible, ante, p. 88; but not evidence 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; though 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 had 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, the 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 v. Le Blanc, 1 Const. Rep. 354.

(a) 1 Eng. C. C. 218. (b) Eng. Com. L. Rep. iii. 333. (c) Id. xxv. 544. (d) Id. xiv. 467.

802 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. 293 (a).

In Banks' case, 8 C. and P. 574 (b), 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 commit 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 notwithstanding 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, East, P. C. 411, 440.

(a) Eng. Com. L. Rep. xxiv. 539. (b) Id. xxxiv. 531. (e) Id. 539. (d) Id. xxxii. 523,

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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. 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) Wheeler's C. C. 202.