any act of the prisoner, connection with the woman while in such a state would constitute the offense. Ballantine observed that in the case referred to the taking the wine by the girl was her own voluntary act. ALDERSON, B. It was offered to her by the man, and there was, at any rate, evidence to show that he had induced her to take it. I concurred in that judgment only on that ground. I will read the note I made at the time. His lordship read as follows, observing at the same time, "this expresses no one's opinion but my own." "The rest of the judges in the affirmative thought that on these facts it must be presumed that this was contra voluntatem, it being clear that the woman had not consented when he began to administer the liquor, and that she never did actually consent at all; that his having connection with her when insensible was therefore clearly contra voluntatem ultimam, which must be as against him, presumed to continue unchanged. PATTESON, J., DENMAN, C. J., and PARKE, B., thought that a connection without the consent of a woman was a rape, e.g., in the case of a woman insensibly drunk in the streets not made so by the prisoner. This, therefore, should be reserved when it occurs." It appeared that the prisoner had had connection with his daughter before, but she never complained to any one then, nor would she of her own accord now, and a woman who saw them together on the bed on the occasion in question, stated that the girl appeared to lie quiet for a moment whilst the prisoner was upon her; but on seeing the witness she immediately attempted to push him off. Clarkson, for the prisoner, at the close of the case for the prosecution, was about to address the jury, when COLERIDGE, J., intimated to him that it was unnecessary. His lordship observed to the jury: The question is, was she a consenting party? And you can not doubt, after the evidence you have heard, that although not in a state to give consent when the connection began, she betrayed no resistance when she might have done so, and that, too, before the connection was at an end. She had been so treated before without complaining, nor would she, from her own statement, have complained now. I think there is not, therefore, such an absence of consent throughout as to justify a conviction of the crime of rape. The jury acquitted the prisoner. So to a prosecu § 125. Consent Obtained by Fraud- Other Instances. — tion for committing an act which is legal only when assented to by certain persons, it is a good defence that these persons have consented, though their consent has been fraudulently obtained.1 § 126. Abortion-Consent of Woman. - The crime of abortion is not committed at common law if the act is done with the consent of the mother prior to quickening.2 § 127. Abduction Consent of Parents. - Where a statute punishes the taking a girl out of the possession and against the will of her parents, if they have encouraged her in a lax course of life this is such a consent as will bar a 1 R. v. Feist, Dears. & B. 590 (1858). 2 Mitchell v. Com., 78 Ky. 205 (1879); Com. v. Bangs, 9 Mass. 387 (1812); Smith v. State, 33 Me. 48 (1851); State v. Emrich, 13 Mo. (App.) 492 (1883); State v. Cooper, 22 N. J. (L.) 52 (1849); Com. v. Parker, 9 Metc. 263 (1845). prosecution. In R. v. Primelt,1 the prisoner and one Simmonds were indicted under such a statute. It appeared in evidence that the girl A. B., who was a little over fifteen years of age, but whose appearance was that of a person three years older, and very prepossessing, lived at home with her mother, a widow who gained her livelihood by labor as a straw-hat worker and charwoman; that on the evening of the alleged abduction, she left her mother's house at nine o'clock in the evening to spend the night at a married sister's, and joining company with another girl named C. D., they walked to a public house, a mile distant, and there met the prisoners; that they went on by appointment to another public house, when they again met the prisoners; they went into the public house with the prisoners and three other girls, and stayed there till twelve at night, when the three other girls, having been sought for and found by their friends, were taken away. Then A. B. and C. D. went in company with the two prisoners to the farming premises of the prisoner Primelt, where they remained till four o'clock the next morning, which was Sunday. It was then proposed that the party should go to London, and Primelt's gig was got out, and all four got into the gig, and were driven by Primelt to the Tring station; thence they went to London, Primelt taking and paying for a ticket for A. B., and Simmonds for C. D. In London, they all four spent the day together, and at night Primelt slept with A. B., Simmonds with C. D.; the next day, Monday, they returned to Tring, and thence went home. The mother swore that it was not by her consent that her daughter had gone away; that missing her on the Sunday, she had inquired everywhere for her without success, and was in great distress about her absence till she came home on Monday. On the cross-examination of the girl A. B., she stated that she occasionally went to dances at public houses, and was occasionally out late at night without any one to look after her; that her mother on these occasions, left the door on the latch, or came down and let her in; that Primelt was not the first man who had had connection with her. The Chief Justice directed the jury that there was no case against Simmonds; and that as to Primelt, if they thought that the mother had by her conduct countenanced the daughter in a lax course of life, by permitting her to go out alone at night and to dance at public houses, this was not a case that came within the intent of the statute, but was one where what had occurred, though unknown to her, could not be said to have happened against her will. Verdict, not guilty. § 127a. Aiding to Escape. In R. v. Martin, the prisoner was indicted for unlawfully aiding and assisting Antoine Mallet, a prisoner at war detained within certain limits at Northampton, to escape and go at large out of the said limits, and conducting him and bringing him to Preston Turnpike Gate, at Northampton, with intent to enable and assist him to escape and go at large out of the kingdom to parts beyond the seas. The case appeared to be this. The defendant lived at Wantage, in Berkshire; she came to Newport Pagnell, and there hired a post chaise to take her to Northampton and back. The post-boy drove her to Northampton, where she got out, and the post-boy went to his usual inn, with orders to return to the place where he set her down, after he had baited and rested his horses. The post-boy in about an hour returned, took the defendant up again in Northampton, 11 F. & F. 51 (1858). 2 R. & R. 196 (1811). and proceeded towards Newport, and when they had just got without the town (and within the limits allowed to the prisoners of war, being one mile from the extremity of the town) she called to the post-boy to stop and take up a friend of hers that was walking along the road. The post-boy stopped, and Mallet got in, and they proceeded together to Preston Turnpike Gate (which is without the aforesaid limits), on the road to Newport, when they were both stopped and apprehended by the commissary, or agent, for French prisoners, and his assistant who had watched them. It appeared in evidence that there was no real escape on the part of Mallet, but that he was employed by the agent for French prisoners, under the direction of the Transport Board, to detect the defendant, who was supposed to have been instrumental in the escape of many French prisoners from Northampton, and that all the acts done by Mallet, the contract for the money to be paid to the defendant, and the place to which they were to go before they would be stopped, were previously concerted between the agent for the prisoners and Mallet, and Mallet had no intention to go away or escape. It was objected to by the counsel for the defendant that the commissary having given license to Mallet to go to the place he did go to, had enlarged the limits of his parole to that place, and therefore Mallet could not be said to have escaped, nor could the defendant be said to have assisted him in escaping out of the limits of his parole. The learned judge proceeded in the trial, and the defendant was convicted, but he respited the judgment and reserved the point for the consideration of the judges. In Trinity term, 15th June, 1811, all the judges met (except LAWRENCE, J.), when they held the conviction wrong, inasmuch as the prisoner never escaped, or intended to escape. § 1276. Bribery. So consent may be an answer to a charge of bribery.1 § 128. Consent — Manslaughter. — In R. v. Bruce, the prisoner was indicted for manslaughter under the circumstances detailed by one of the witnesses. He said the prisoner came into his master's shop, and pulled him by the hair off a cask where he was sitting, and shoved him to the door, and from the door back to the counter. That the prisoner then put his arm round his neck and spun him round, and they came together out of the shop; the prisoner kept "hold of the witness when they were outside, and kept spinning him round; the latter broke away from him, and, in consequence, and at the moment of his so doing, he (the prisoner) reeled out into the road and knocked against a woman who was passing, and knocked her down. The prisoner was very drunk, and staggered as he walked." The woman so knocked down died shortly afterwards of the injuries she had received, and it was for having caused her death that the prisoner was indicted. Mr. Justice ERLE inquired of the witness (a young lad) whether he resisted the prisoner during the transaction. The lad answered that he did not; he thought the prisoner was only playing with him, and was sure that it was intended as a joke throughout. ERLE, J. (to the jury). I think, upon this evidence, you must acquit the prisoner. When the death of one person is caused by the act of another, while the latter is in pursuit of any unlawful object, the person so killing is guilty of manslaughter, although he had no intention whatever of injuring him when he was the victim of his conduct. Here, however, there was nothing unlawful in 1 O'Brien v. State, 6 Tex. (App.) 665 (1879). 22 Cox, 262 (1847). what the prisoner did to this lad, and which led to the death of the woman. Had his treatment of the boy been against the will of the latter, the prisoner would have been committing an assault -an unlawful act-which would have rendered him amenable to the law for any consequences resulting from it; but, as everything that was done was with the witness' consent, there was no assault, and, consequently, no illegality. It is, in the eye of the law, an accident, and nothing more. § 129. Larceny - Non-Consent of Owner to Taking Must be Shown.- On a prosecution for larceny if the proof does not show that the taking was against the consent of the owner of the property, the crime is not proved.1 § 130. Consent-Larceny-Parting with Money on Forged Check. - In R. v. Prince, it was held by the English Court of Criminal Appeal that where a bank cashier had paid a forged check, the party obtaining the money was not guilty of the larceny of it. The case reserved was as follows: Charles Prince was tried before me at the August session of the Central Criminal Court on an indictment charging him, in the first count, with stealing the amount of £100, the property of Henry Allen; in the second count, with receiving the same knowing it to have been stolen; and in two other counts the ownership of the money was laid in the London and Westminster Bank. It appeared in evidence that the prosecutor, Henry Allen, had paid moneys amounting to £900 into the London and Westminster Bank on a deposit account in his name, and on the 27th of April, 1868, that sum was standing to his credit at the bank. On that day the wife of Henry Allen presented at the bank a forged order, purporting to be the order of the said Henry Allen, for payment of the deposit, and the cashier at the bank, believing the authority to be genuine, paid to her the deposit and interest in eight bank notes of £100 each, and other notes. Among the notes of £100 was one No. 72,799, dated the 19th of November, 1867. On the 1st of July, 1868, the wife of Henry Allen left him and his house; and she and the prisoner were shortly afterwards found on board a steamboat at Queenstown, on its way from Liverpool to New York, passing as Mr. and Mrs. Prince, Mrs. Allen then having in her possession nearly all the remainder of the notes obtained from the bank. The note for £100, No. 72,799, was proved to have been paid away by the prisoner in payment for some sheep, in May, 1868, and he said he had it from Mrs. Allen. Upon this evidence it was objected by prisoner's counsel that the counts alleging the property in Henry Allen must fail, as the note had never been in his possession; and that as to the other counts, the evidence did not show any larceny of the note from the bank by the wife, but rather an obtaining by forgery or false pretenses by her, and that the receipt by the prisoner from her was not a receipt of stolen property I held, however, that the forged order presented by the wife was, under the circumstances, a mere mode of committing a larceny against the London and Westminster Bank, and that the prisoner was liable to be convicted on the fourth count. The jury found the prisoner guilty on that count, and I respited judgment, and reserved for the consideration of the court the question whether the 1 State v. Moore, 41 Wis. 684 (1877); Love v. State, 15 Tex. (App.) 563 (1884); Anderson v. State, 14 Tex. (App.) 49 (1883); Bowling v. State, 13 Tex. (App.) 338 (1882); Lindley v. State, 8 Tex. (App.) 445 (1880); Erskine v. 2 11 Cox, 193 (1868). obtaining the note from the bank by Mrs. Allen, under the circumstances stated, was a larceny by her. If not, the conviction must be reversed. The prisoner remains in custody awaiting judgment. THOMAS CHAMBERS. BOVILL, C. J. I am of opinion that this conviction can not be supported. The distinction between larceny and false pretenses is very material. The one is a felony, and the other a misdemeanor; and, although by reason of modern legislation, it has become not of so much importance as formerly, it is still desirable to keep up the distinction. To constitute a larceny there must be a taking of the property against the will of the owner, which is the essence of the crime of larceny. The authorities cited by the counsel for the prisoner show that where the property has been obtained voluntarily from the owner, or a servant acting within the scope of his authority, the offense does not amount to larceny. The cases cited for the prosecution were cases where the servant who parted with the property had a limited authority only. In the present case the cashier of the bank was acting within his authority in parting with the possession and property in the money. And if, as in this case, that was done with the intention of divesting his employers of the property, the conviction can not be sustained. Under these circumstances the conviction must be quashed. CHANNELL, B. I am of the same opinion. The cases cited for the prisoner are distinguishable from those cited for the prosecution. In the one set of cases the servant was acting under a general authority; in the other, under a special and limited authority. If the transaction is one where the servant had a general authority, and he has done all that he intended to do in order to pass the property, the property passes from the master. Therefore, here the money passed to Mrs. Allen, and can not be said to have been stolen. The conviction is bad. BYLES, J. I am of the same opinion. My judgment is founded on the weight and balance of authority. BLACKBURN, J. I am of the same opinion. In the old times larceny was a capital felony, and the taking of the property stolen must have been proved to have been against the will of the owner. The courts held that where the owner intended to part with the property, the thing alleged to have been stolen, that was not larceny; and also that where the servant or agent had a general authority to part with his employer's property in the management of the business, then the offense was not larceny if he intended to part with the property wrongfully obtained. The case was different if the servant or agent had not authority to part with the property. The difficulty is to decide whether a given case falls within the one class or the other. Where a servant has no general authority to deal with his master's property, but he is told to deliver a parcel to A. B., and no one else, then he is acting under a limited authority; and it was held by the judges that a person obtaining the parcel from the servant by fraud was guilty of larceny. The same judges had a short time previously decided the case of Rex v. Jackson. A cashier of a bank has a general authority to part with his employer's money if a person presents a check to him, if he believes the check to be a genuine one; and if he does so, and it turns out to be a forged check, the offense is not larceny. LUSH, J. I am of the same opinion. The cashier of a bank is placed at the counter for the purpose of parting with the money of his masters in payment |