"I think the safest course will be to reject the evidence, as it is not part of the res gestæ, but merely confirmatory evidence. At the time of Brazier's case, it seems to have been considered, that, as the child was incompetent to take an oath, what she said was receivable in evidence. The law was not so well settled then as it is now."(i) So where on an indictment for abusing a child under ten years of age, the child was wholly ignorant of the nature of an oath, and therefore not examined, and it was proposed to give evidence of a statement made by her relative to the offence, and the name of the person who committed it; Pollock, C. B., refused to admit it, observing, "If a man says to his surgeon, I have a pain in my head,' or a pain in such a part of the body, that is evidence; but if he says to his surgeon, 'I have a wound,' and adds, I met John Thomas, who had a sword, and ran me through the body with it,' that would be no evidence against John Thomas: and it is certainly a very odd reason for receiving the evidence of what a child has said, that that child is not capable of taking an oath."(k) The character of the prosecutrix, as to general chastity, may be impeached by general evidence,(7) as by showing her general light character, and giving general evidence of her being a street-walker.(m) But, in a case where a question was put to a prosecutrix, "Whether she had not before had connection with other persons; and whether she had not before had connection with a particular person who was named;" an objection taken to this question by the counsel for the prosecution was allowed by the learned Judge; who also allowed an objection, made by the counsel for the prosecution, to the admissibility of evidence to prove that the girl had been caught in bed, about a year before this charge was preferred, with a young man who was tendered by the prisoner's counsel to prove that he had had connection with her: and the question as to the admissibility of such evidence being reserved, eight Judges, who were present at the discussion, held that both the objections were properly allowed. (n)1 On a trial for rape upon a child between ten and twelve years of age, the witness for the prosecution was cross-examined as to particular facts of indecency on the part of the prosecutrix, and of solicitation by her previously made to men to have connection with her, and witnesses were called to prove these facts; but Lord Abinger, C. B., objected to their being examined, referring to a case (evidently Rex v. Hodgson) where such a course was disallowed, but saying that that ruling gave so much dissatisfaction that the Attorney-General recommended a pardon, which was granted; and afterwards, on the authority of Rex v. Clarke,(o) his lordship allowed witnesses to be called to prove general want of decency in the prosecutrix, and then permitted the prosecutrix to call witnesses to rebut their evidence.(p) But it has since been holden, that a prosecutrix may be asked questions as to particular criminal or discreditable acts. As, "Were you not walking (i) Reg. v. Guttridge, 9 C. & P. 471 (38 E. C. L. R.). (k) Reg. v. Nicholas, 2 C. & K. 246 (61 E. C. L. R.). (1) Rex v. Clarke, 2 Stark. N. P. C. 241 (3 E. C. L. R.); 3 Stark. Evid. 951. [*926 (m) Reg. v. Clay, 5 Cox C. C. 146, where Patteson, J., admitted evidence that the prosecutrix had been seen on the streets of Shrewsbury as a reputed prostitute. (n) Rex v. Hodgson, R. & R. 211. (p) Reg. v. Tissington, 1 Cox C. C. 48. (0) Supra. 1 On an indictment for an assault with intent to commit a rape, evidence that the person charged to have been injured is in fact a common prostitute, or evidence of reputation that she is a woman of ill fame, may be submitted to the jury to impeach her credibility and disprove her statement that the attempt was forcible and against her consent: Camp v. State, 3 Geo. 419; M'Combs ". State, 8 Ohio (N. S.) 643; State v. Forshner, 43 N. II. 89; M Dermott v. State, 13 Ohio (N. S.) 332; State v. White, 35 Mo. 500; Pratt v. State, 19 Ohio St. 277. It is not allowable to examine the prosecutrix in relation to particular instances of connection with other men, though she may be interrogated as to her previous intercourse with the prisoner himself: Pleasant v. State, 15 Ark. 624. As to evidence of specific acts of unchastity, see State v. Knapp, 45 N. H. 148; State v. Johnson, 2 Wms. 512; People v. Benson, 6 Cal 221; People v. Jackson, Parker C. R. 391; Comm. v. Regan, 105 Mass. 593; State v. Murray, 63 N. C. 31; State v. Johnson, 38 Verm. 512; State v. Reed, 39 Ibid. 417. in the High-street with a common prostitute? (q) So, also, whether the prisoner had not previously had connection with her, by her own consent?(r) So in an action for seduction of the plaintiff's daughter, she may be cross-examined as to particular acts of intercourse with other men, and, if she deny them, then such persons may be called to contradict her, and may be asked as to the fact and the time and place of its occurrence.(s) So on an indictment for rape, where the prosecutrix, on cross-examination, denied that she had had connection with several men who were shown to her at the time she was questioned. Coleridge, J., after consulting Erskine, J., held that these persons might be called to prove that they had had connection with her; for it was not immaterial to the question whether the prosecutrix had had this connection against her consent, to show that she had permitted other men to have connection with her, which she had denied.(t) But where, on a trial for rape, the prosecutrix was cross-examined as to a charge of stealing money from a former mistress, and as to the account she had given of the money found in her possession to a constable, and she said that she told the constable a gentleman had given it her for not telling of his insulting her, and denied that she had told him that it was given her by the gentleman for having connection with her; it was held that the constable could not be called to contradict her, and to prove that she told him the gentleman had given her the money for having connection with her. (u) The application of these and other rules upon this difficult subject should always be made with due regard to the cautious observations of a great and experienced Judge. Lord Hale says, "It is true, that rape is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent."(v) He then mentions two remarkable cases of malicious prosecution for this crime, that had come within his own knowledge: and concludes, "I mention these instances, that we may be the more cautious upon trials of offences of this nature, wherein the court and jury may, with so much ease, be imposed upon without great care and vigilance: the heinousness of the offence many times transporting the judge and jury with so much indignation, that they are over-hastily carried to the conviction of the person accused thereof, by the confident testimony, sometimes, of malicious and false witnesses." (w) Where, on a trial for rape, the prosecutrix stated that she complained almost immediately to her mistress, and the next day her *clothes were washed by a *927] washerwoman, and they had blood on them; Pollock, C. B., directed these persons to be called as witnesses for the prosecution, although they were attending as witnesses for the prisoner, but allowed the counsel for the prosecution all latitude in examining them.(x) On a trial for rape it was proposed on the part of the prosecution to ask a witness for the defence as to something that had been said by a relative of the prosecutrix to a relative of the prisoner, in the presence of the prosecutrix, about making it up; it was objected that evidence of a conversation between third persons, not made in the presence of the prisoner, was inadmissible. Martin, B.: "In a civil case, what is said in the presence of either of the parties is admissible, because it is open to the party so present to express assent or dissent to what is said, and that would be admissible against him. In criminal cases, the prosecutor, although not in strict law a party to the case, is so in fact; and I think that the rule applicable to conversation (9) Rex v. Barker, 3 C. & P. 589 (13 E. C. L. R.), Park, J. A. J., and Park, JJ. (r) Rex v. Martin, 6 C. & P. 562 (25 E. C. L. R.), Williams, J., saying he never could understand Rex v. Hodgson. And the prisoner may show that she has been previously connected with him: Rex v. Aspinall, cor. Hullock, B., York Spr. Ass. 1827, 3 Stark. Evid. 952. (s) Verry v. Watkins, 7 C. & P. 308 (32 E. C. L. R.). See also Andrews v. Askey, 8 C. & P. 7 (34 E. C. L. R.), Tindal, C. J. (t) Reg. v. Robins, 2 M. & Rob. 512. (u) Reg. v. Dean, 6 Cox C. C. 23, Platt, B., after consulting Wightman, J. () 1 Hale 635. (w) 1 Hale 636. (x) Reg. v. Stroner, 1 C. & K. 650 (47 E. C. L. R.). in the presence of a party in a civil case may be fairly extended to a conversation in the presence of the prosecutor in a criminal case."(y) It has already been shown that this offence is now punishable by penal servitude for life.(z) By the 24 & 25 Vict. c. 100, s. 67, every principal in the second degree, and every accessory before the fact, is punishable in the same manner as a principal in the first degree; and every accessory after the fact to any felony punishable under this Act (except murder), is liable to be imprisoned for any term not exceeding two years, with or without hard labor.(a) Upon an indictment for a rape, a prisoner may be convicted under the 14 & 15 Vict. c. 100, s. 9, of an attempt to commit the same, and thereupon will be liable to be punished in the same manner as if he had been convicted upon an indictment for attempting to commit the rape.(b) It may be as well to observe, that by the 4 & 5 Vict. c. 56, s. 6, the crime of rape shall not be tried, or triable, before any justices of the peace, at any general or quarter sessions of the peace." Where there is no reason to expect that the facts and circumstances of the case, when given in evidence, will establish that the crime of rape has been completed, the proper course will be, to prefer an indictment at common law, for an assault with intent to ravish; which offence, though only a misdemeanor, yet is one of a very aggravated nature, and has, in many instances, been visited with exemplary punishment.(c) Formerly where, upon an indictment for an assault with intent to commit a rape, the prosecutrix proved a rape actually committed, an acquittal would have been directed, on the ground that the misdemeanor was merged in the felony.(d) But now by the 14 & 15 Vict. c. 100, s. 12, * if upon the trial of any person [*928 for any misdemeanor it shall appear that the facts given in evidence amount in law to a felony, such person shall not by reason thereof be entitled to be acquitted of such misdemeanor; and no person tried for such misdemeanor shall be liable to be afterwards prosecuted for felony on the same facts, unless the Court, before which such trial may be had, shall think fit, in its discretion, to discharge the jury from giving any verdict upon such trial, and to direct such person to be indicted for felony, in which case, such person may be dealt with in all respects as if he had not been put upon his trial for such misdemeanor." In order to convict of such an assault, the jury must be satisfied that the prisoner intended to gratify his passions, on the person of the prosecutrix, at all events, and notwithstanding any resistance on her part. Upon an indictment for an assault, with intent to commit a rape, Patteson, J., in summing up, said, "In order to find the prisoner guilty of an assault, with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part."(e) It was held by the same very learned Judge, in the same case, that evidence that the prisoner, on a prior occasion, had taken liberties with the prosecutrix, was not admissible, to show the prisoner's intent.(f) Under a count for an assault, with intent to commit a rape, a prisoner may be convicted of a common assault.(g) But on an indictment, containing a count for an assault with intent to commit a rape, and a count for a common assault, if the prisoner be acquitted on the count for an assault with intent to commit a rape, on the ground that the prosecutrix consented, he cannot be convicted on the count (y) Reg. v. Arnall, 8 Cox C. C. 439. (a) See the section, ante, p. 881. (z) Ante, p. 904. (b) See the section, ante, p. 1. (c) To the extent of fine, imprisonment, and pillory, and finding sureties for good behavior for life: 1 East P. C. c. 10, s. 4, p. 441. The punishment of the pillory could not now be imposed for such offence, in consequence of the 56 Geo. 3. c. 138; and with respect to sureties for good behavior for life, it is observed, that such part of the sentence is not consonant to the practice of our present constitution in the apportionment of discretionary punishment; as tending to imprisonment for life: East P. C. Ibid. (d) Rex v. Harmwood, cor. Buller, J., Winchester Spr. Ass. 1787; 1 East P. C. c. 8, 8. 5, p. 411, and c. 16, s. 3, p. 440. Ante, p. 915; Reg. v. Nicholls, 2 Cox C. C. 182, s. p. (e) Rex v. Lloyd, 7 C. & P. 318 (32 E. C. L. R.), Patteson, J. (ƒ) Ibid. (g) Per Hullock, B., 1 Lewin 16. for a common assault; for to support that count such an assault must be proved as could not be justified if an action were brought for it, and leave and license pleaded.(h) An indictment may contain two counts for two different attempts to commit a rape on the same female, and evidence of both may be given on the trial. (1) And where one count charged the prisoner with an attempt to commit a rape, and another count charged him with an assault, and the record stated that the jury found him "guilty of the misdemeanor and offence in the said indictment specified," and it was adjudged that "for the said misdemeanor," he shall be imprisoned for two and kept to hard labor; it was held, upon error, that the word "misdemeanor " was nomen collectivum, and therefore the finding of the jury was in effect that the prisoner was guilty of the whole matter charged by the indictment, and consequently the judgment was warranted by the verdict.(k) By the 24 and 25 Vict. c. 100, s. 38, in case of assault with *intent to *929] commit a rape, and by sec. 527) in case of any indecent assault on any female, the Court may sentence the offender to be imprisoned, for any term not exceeding two years, with or without hard labor, and may also (if it shall so think fit), by sec. 71,(m) fine the offender, and require him to find sureties for keeping the peace. Assaults by taking indecent liberties with females, though without actual force or violence, will be mentioned in a subsequent chapter.(n) Sec. II-Of the unlawful Carnal Knowledge of Female Children. IN rape, as we have seen, the carnal knowledge must be against the will of the party; but, by the 18 Eliz. c. 7, carnal knowledge of any woman-child under the age of ten years, was made felony without benefit of clergy; and this without any reference to the consent or non-consent of the child, which was therefore considered as immaterial. It appears at one time to have been thought, that the carnal knowledge of a child above the age of ten and under twelve years was rape, though she consented: twelve years being the age of consent in a female, and the statute Westm. 1, c. 13, which enacted, "That none do ravish any maiden within age, neither by her own consent nor without," being admitted to refer, by the words "within age," to the age of twelve years. (0) It was, however, afterwards well established, that if the child was above ten years old it was not a rape, unless it was against her consent. (p) But children above that age, and under twelve, were within the protection of the statute of Westm. 1, c. 13. the law with respect to the carnal knowledge of such children not having been altered by either of the subsequent statutes of Westm. 2, c. 34, or 18 Eliz. c. 7. The statute Westm. 1, c. 13, made the deflowering a child above ten years old, and under twelve, though with her own consent, a misdemeanor punishable by two years' imprisonment, and fine at the King's pleasure.(q) These statutes, and the 9 Geo. 4, c. 31, are now repealed; and by the 24 and 25 Vict., c. 100, s. 50, "whosoever shall unlawfully and carnally know and abuse any girl under the age of ten years shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years,- -or to be imprisoned for any term not exceeding two years, with or without hard labor."(r) (h) Reg. v. Meredith, 8 C. & P. 589 (34 E. C. L. R.), Lord Abinger, C. B. (i) Reg. v. Davies, 5 Cox C. C. 328. (k) Rex v. Powell, 2 B. & Ad. 75 (22 E. C. L. R.), Taunton, J., thought the two counts only charged one assault. (1) Post, p. 930. (n) Post, chap. x. s. 1. (0) 1 Hale 631; 2 Inst. 180; 3 Inst. 60. (m) Ante, p. 900. (p) Sum. 112; 4 Blac. Com. 212; 1 East P. C. c. 10, s. 2, p. 436. (q) 4 Blac. Com. 212; 1 East P. C. c. 10, s 2, p. 436. (r) This clause is taken from the 9 Geo. 4, c. 31, s. 17; 10 Geo. 4, c. 34, s. 20 (I.), and 4 & 5 Vict. c. 56, s. 3. As to principals in the second degree and accessories, see sec. 67, ante, p. 881. As to hard labor, &c., see ante, p. 900. As to sureties, see ante, p. 900. [*930 *Sec. 51. "Whosoever shall unlawfully and carnally know and abuse any girl being above the age of ten years and under the age of twelve years shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for the term of three years, or to be imprisoned for any term not exceeding two years, with or without hard labor."(s) Sec. 52. "Whosoever shall be convicted of any indecent assault upon any female, or of any attempt to have carnal knowledge of any girl under twelve years of age, shall be liable, at the discretion of the Court, to be imprisoned for any term not exceeding two years, with or without hard labor."(1) Upon an indictment on either sec. 50 or sec. 51, the prisoner may, under the 14 & 15 Vict. c. 100, s. 9, be convicted of an attempt to commit the offence with which he is charged.(u) It was said, that an indictment on the 18 Eliz. c. 7, for deflowering a child under ten years of age, ought to conclude "against the form of the statute," because the crime, as well as the punishment, was created by that statute.(v) And that, on the same account, it was necessary for the indictment to pursue the words of the Act, and charge that the defendant feloniously, unlawfully and carnally, knew and abused the party, being under the age of ten years, without adding the word ravished.(w) These observations seem equally applicable to an indictment on the present statute. Clear and distinct evidence ought to be given that the child is under ten years of age. Thus, where the offence of carnally knowing a child under ten years of age was charged to have been committed on the 5th of February 1832, and the only evidence of the age of the child was given by the father, who stated that in February 1822, he went from home for a few days, and that his wife had not then been confined, and that on his return on the 9th of the same month, he found the child had been born, and he was told by his wife's mother that it had been born the day before; the grandmother was alive at the time of the trial, but the mother was dead. It was held that the evidence was not sufficient, and that the grandmother ought to have been called, for in a matter of so much importance the best evidence ought to be adduced. (x) So, on a similar indictment, evidence by the child herself that she was ten years old on a particular day, her mother being ill at home, and her father being unable to state the precise time of her birth, has been held insufficient.(y) But where on an indictment for carnally knowing a child under ten years of age the mother stated that she had never kept any account of the child's age, but that her knowledge of it was *derived from hearing her husband [*931 speak of it, and from conversation with him and the child, and that it had been usual to keep the birthday of the child on the 7th of February, and there was no other evidence of the age; it was objected that more certain evidence of the age ought to have been produced, and Rex v. Wedge(z) was relied upon; Coltman, J., however, observed, "that the evidence in that case was mere hearsay; but this evidence went much farther, and must be submitted to the jury as some evidence, though open to observation, as to the child's age."(a) A boy under fourteen years of age cannot be convicted of this offence, and evidence is not admissible to prove that he has arrived at the full stage of puberty.(b) (8) This clause is taken from the 9 Geo. 4, c. 31, s. 17; 10 Geo. 4, c. 34, s. 20 (I.), and 5 Vict. Sess. 2, c. 28, s. 14 (I.). As to counsellors and abettors, see sec. 67, ante, p. 881. As to hard labor, &c., see ante, p. 900. (t) This clause is taken from the 14 and 15 Vict. c. 100, s. 29. As to hard labor, &c., see ante, p. 900. As to fine and sureties under this and the preceding section, see ante, p. 900. The Act extends to Ireland, but not to Scotland. (u) See the section, ante, p. 1. (v) East P. C. c. 10, s. 10, p. 448. (w) Id. Ibid. (x) Rex v. Wedge, 5 C. & P. 298 (24 E. C. L. R.), MS., C. S G. Taunton and Littledale, JJ. (a) Reg. v. Hayes, 2 Cox C. C. 226. (y) Reg. v. Day, 9 C. & P. 722 (38 E. C. L. R.), Coleridge, J. |