conviction could be obtained; and there was not that sort of testimony on which a judge would be justified in leaving the case to the jury to find a verdict. We are unanimously of opinion that there was here no evidence to establish either that this connection was against her will or without her consent. There the contention on the part of the Crown must be that an idiot is incapable of consent, and it might be said in answer that the same cause which required an act of Parliament to make the mere fact of connection a criminal offense in the case of children of tender years, would require an act of Parliament in the case of idiots." There was no evidence in this case except the prisoner's admission; and a medical man testified that she was a fully developed woman, and that strong animal instinct might exist, notwithstanding her imbecile condition.

In Regina v. Beale,1 the first count was for unlawfully attempting to have carnal knowledge of a child under ten years; the second for assaulting with intent; and the third for an indecent assault. The jury found a verdict "Guilty, for that the child was too young to know what she was doing, and therefore consented to the act done by the prisoner." On a case reserved, Pollock, C. B., said that consent was altogether unimportant; the facts showed an attempt to commit a crime when consent was immaterial, adding "of course, if the indictment had been merely for an indecent assault, the question of consent would have become material."

In Regina v. Cockburn, for feloniously knowing a child under ten, the principal charge could not be supported, and the prosecutor urged that there could be a conviction for an assault. Sir J. Patteson said "a child under ten years of age can not give consent to any criminal intercourse, so as to deprive that intercourse of criminality, but she can give such consent as to render the attempt no assault. We know that a child can consent to that which, without such consent, would constitute an assault." This case was cited in Regina v. Beale.

Regina v. Fletcher,3 was a charge of rape of an idiot girl aged thirteen; verdict guilty, and that the jury considered her incapable of giving consent, from defect of understanding. Willes, J., mentioned the direction he had given in a case at the Old Bailey, already cited; and Lord Campbell said "that direction was in accordance with Camplin's and Ryan's Cases. But here there was no evidence of that kind" (viz., consenting from animal instinct), but rather to the contrary. If the offense is complete where it was by force and without her consent, then the offense is proved that was charged in the indictment, and the prisoner was properly convicted. Camplin's Case

*

1 L. R., 1 C. C. 11.

2 3 Cox, C. C. 543.

38 Cox, C. C. 131; 32 L. T. 338.

settles the definition of the offense, and all the ten judges concurred in that. That definition includes the present case, the only difference in this being, that here the prosecutrix was not capable of giving consent. But then the prisoner knew her condition at the time. See, also, Regina v. Jones, where a father was indicted for rape of his daughter, when Channell, B., directed that if the prisoner had established a reign of terror over his daughter, in consequence whereof she did not resist, the jury might convict.

Regina v. Read,2 was a case of common assault, but the evidence showed that defendant had connection with the girl, she being nine years old. The jury found a verdict of "guilty, the child being an assenting party, but from her tender years she did not know what she was about." The court, consisting of Lord Denman, Alderson and Parke, B. B., and Coltman and Coleridge, JJ., held that it had been solemnly decided that if the girl assents, the act is not an assault.

There are several cases of assaults on girls between ten and twelve. Regina v. Meredith,3 was an assault with intent. The prosecution gave up that she had not consented, and Lord Abinger directed an acquittal, saying that "to support a charge of assault you must show an assault which could not be justified if an action were brought for it, and leave and license pleaded."

In Regina v. Martin, the first count charged a carnal knowing of a girl between ten and twelve; the second count was for assault with intent to know; the third, for common assault. The evidence failed to prove the first count, but there was clear proof of the attempt, with consent. Alderson, B., after a verdict finding consent on the second and third counts, reserved the case, and the judges held that as there was consent it was not an assault. By direction of the court he was again indicted for the attempt to commit a misdemeanor, although the offense was not an assault. He was accordingly indicted on a count setting forth the acts done, and that he did thereby unlawfully attempt to carnally know and abuse, etc., contra pacem, not charging an assault. Patteson J., quashed the indictment for omitting to state the girl's age and said, "When the essence of the offense charged is an assault (and there can be in law no assault unless it be against consent); this attempt, though a criminal offense, is no assault. It is perfectly clear that every attempt (not every intention, but every attempt) to commit a disdemeanor is a misdemeanor."

*

Regina v. Meehegan,5 was an assault with intent, etc., on a girl between ten and twelve. The conviction was quashed, the judge refus

14 L. T. (N. S.) 54.

21 Den. C. C. 377.

8 C. & P. 589.

49 C. & P. 213.

57 Cox, C. C. 145.

ing to tell the jury that if the girl assented, there could not be a verdict of guilty.

In Regina v. Johnson,1 the prisoner was convicted of indecent assault of a girl between ten and twelve; verdict guilty; but that she consented, the case was reversed, and Cockburn, C. J., said: "This case is quite concluded by the authorities, which rest on a very intelligent principle. Independently of the statutes the having carnal knowledge of a child was not an offense at law. The statutes made it an offense, saying that whether the child was an assenting party or not, it should be an offense. It follows, therefore, that the offense in this case, not being an offense within any statute, it was not an offense at common law."

Regina v. McGavarnon,2 was for an indecent assault on a girl of thirteen. Williams, J., told the jury that there was no doubt that it was against her will, considering her tender age. The defendant was her schoolmaster.

In Regina v. Ryan,3 the indictment was for rape on an idiot girl, before Platt, B. The girl's father gave evidence of her general decency and propriety; and the judge told the jury, "It seems that she was in a condition incapable of judging, and it is important to consider whether a young person in such a state of incapacity, was likely to consent to the embraces of this man; because if her habits, however irresponsible she might be, were loose and indecent, there might be a probability of such consent being given, and a jury might not think it safe to conclude that she was not a willing party. But here the presumption is, that she would not have consented, and if she was in a state of unconsciousness at the time the connection took place, whether it was produced by any act of the prisoner, or by any act of her own, any one having connection with her would be guitly of rape. If you believe she was in a state of unconsciousness, the law assumes it took place without her consent, and the prisoner is guilty."

We gather from all these cases, that in the case of a child under ten years of age, if the indictment be for the misdemeanor of attempting to commit the statutable felony, consent becomes unimportant.

That in such a case, on an indictment for the principal offense there can not be a conviction for the assault, if there be consent to what was done, nor for an assault independently charged.

That in the case of girls from ten to twelve, on a charge of assault with intent to carnally know, or indecently assault, or common assault, consent is a defence.

But that the prisoner may be indicted for attempting to commit the statutable misdemeanor, not charging an assault, in which case it

1 10 Cox, C. C. 114; 12 L. T. (N. s.) 503.

2 6 Cox, C. C. 65.

32 Cox, C. C. 115.

seems consent is no defence, according to Regina v. Martin, already cited.

That in the case of rape of an idiot or lunatic woman, the mere proof of the act of connection will not warrant the case being left to the jury, there must be some evidence that it was without her consent―e.g., that she was incapable of expressing consent or dissent, or from exercising any judgment upon the mattter, from imbecility of mind or defect of understanding; and if she gave her consent from animal instinct or passion, it would not be rape.

To apply these principles to the case before us, the jury might, on the evidence, have perhaps justly arrived at the conclusion that there was no consent, in fact, from the account given by the witnesses as to what they heard the woman cry out as they approached.

But after they were told by the learned judge that if they were satisfied she was of unsound mind, with no moral perceptions of right and wrong, that her acts were not controlled by the will, and were, in fact, involuntary, she could not be said to be capable of consent, and from her state of mind and impotence of will, the yielding on her part to force ought not be taken as an act done with her will then when the jury so instructed found that she was a consenting party to what the prisoner did, we can not but feel that the case presents a difficulty.

We may assume the jury took the law from the court, as they should have done, and with that instruction, as to what would be and would not be a consent, not qualified (as in many of the cases noticed), as that from the state of her mind or unconsciousness either of the nature of the act, etc., she consented; but generally. It is true they also found that she was insane at the time.

This suggests another aspect of the case. No question seems to have been asked or evidence given of the unfortunate woman's habits or character for decency or chastity. She was a married woman with children, and was found to have acted at various times in such a strange manner as to furnish strong evidence of hallucination and delusion, warranting the jury in finding her, in popular language, insane.

But, quite consistently with the existence of insane delusion, there might be in the woman's mind perfect delicacy of feeling and chastity that would revolt from criminal intercourse, and, on the other hand, perfect consciousness of the impropriety and indecency of such intercourse. In the case of a mind in the latter state, however otherwise as to delusion, we hardly see how the law could presume the absence of legal consent on the grounds suggested to the jury, in the face of evidence of consent, in fact, which we must presume the jury found here. The case may be summed up thus:

There is no evidence whatever as to the woman's general character

for decency or chastity, or anything to raise a presumption that she would not consent to the alleged outrage upon her. There is evidence of insane delusion of some years' standing, unconnected with anything relating to matters of this kind. The jury, on a view of the law certainly not too favorable to the prisoner, while they find the insanity, also find that she was a consenting party, not qualifying the latter finding.

We think this conviction can not be supported.

We have treated the case throughout in the view least favorable to the prisoner, and our remarks would more pointedly apply to a case where the connection had actually taken place.

On a charge like the present, of an assault with intent to ravish, it would seem, on the decided cases, to be impossible to support a conviction where consent is found.

As the Chief Baron remarked, there is no act of Parliament declaring the fact of criminal connection with an idiot or lunatic to be an offense, as in the case of children of tender years.

In the principal offense, consent from mere animal instinct has been held to be a defense in the case of an idiot.

It is impossible to say that it must not be equally so in the lesser charge of assault with intent, and equally impossible when a consent in fact is proved. In the case of the idiot, the lunatic, the drunken, or insensible, the crime can only be complete on the actual or legal deduction that the connection took place without consent.

In what manner the absence of such consent has been presumed or inferred has been already considered.

Conviction quashed.

CONSENT OBTAINED BY FRAUD — STATUTORY REQUIREMENTS OBTAINED BY FRAUD.

R. v. FEIST.

[Dears. & B. 570.]

In the English Court for Crown Cases Reserved, 1858.

F. the Master of a Workhouse, was by statute, permitted to dispose of dead bodies for the purpose of dissection, provided the relatives did not require them to be buried without dissection. For the purpose of preventing the relatives in several cases from making this requirement and leading them to suppose that the bodies were buried without dissection, F. showed them to the relatives in coffins and caused the appearance of a funeral to be gone through. On an indictment against F. for disposing of dead bodies for dissection, F. pleaded that no requirement had been made by the relatives. Held, that this was a good defence, notwithstanding his fraud had prevented them from making the requirement.