2

PLATT, he decided that both penetration and emission were necessary to constitute the offence. The nice distinctions, however, which have been raised in regard to emission, and the question whether penetration was prima facie evidence of emission, have been settled by a provision of the Revised Statutes, which enact that proof of actual penetration into the body, shall be sufficient to sustain an indictment for rape. But a very slight penetration is sufficient, even though it may not be attended with the deprivation of the marks of virginity.3

Before the passage of our statute, it was said, that it is not necessary in order to complete the offence, that the hymen should be ruptured, provided it is clearly proved that there was penetration; but where that is so very near to the entrance, and 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.1

In Reg. v. Jordon, WILLIAMS, J., said: I think it is impossible to lay down any express rule as to what constitutes penetration. All I can say is, that the parts of the male must be inserted in those of the female, but I cannot suggest any rule as to the extent.5

6. Of the Medico-Legal Inquiries to be Made.

Medical evidence in cases of rape, is seriously affected by cir cumstances over which the physician can have no control. One of the most important of these is, the want of an examination at a sufficiently early period to afford useful results. In genuine cases, where rape has been really attempted, the local marks of violence are often extremely insignificant, and consequently soon disappear. A slight contusion of the genitals, a laceration of the hymen, or a trifling discharge of blood, are the sole indications of the transaction, and may within forty-eight hours be no longer present.

Professor DEAN, in his work on medical jurisprudence (25, et seq.), says: The two main facts to be made out on an indictment for rape are: 1st. Forcible penetration. 2d. In cases of females

over ten years of age, that the force used was against the will of the injured party.

In this inquiry the main points, to which the attention is to be directed, are the following:

1. What are the marks of violence, if any discernible, in the organs themselves.

2. What marks or indications of actual violence upon the person, either of the prosecutrix or of the prisoner.

3. What marks, or spots of blood, or stains, caused by the spermatic fluids, on the clothes of the prosecutrix or prisoner. 4. What evidence of gonorrhoea or syphilis, in one or both of the parties.

5. The relative age, strength, constitution, habits, situation, circumstances, mental powers, and propensities of both the prosecutrix and the prisoner.

It must not be supposed that the presence of bruises or other injuries, upon the person of the prosecutrix, is conclusive evidence that consent was not given. They may have been:

1. Self-inflicted, with the view to sustain her testimony and to make out the case on the part of the prosecution.

2. Notwithstanding the violence, the conduct of the female may have been such as to imply consent on her part.

3. She may have consented after the infliction of the violence. The two latter are perhaps hardly consistent with a resort to any very great degree of violence.

When the accused and the accuser are both in the full possession of health and strength and of the ordinary amount of physical and mental power, the perpetration of this crime must be of difficult if not of impossible occurrence. The opinion of medical jurists generally is against the strongest probabilty, if not possibility, of its full and perfect accomplishment. Where, under such circumstances, the woman retains her mental powers unimpared and also her bodily, except so far as they may be exhausted by her efforts at resistance, although the attempt may be made, yet its successful consummation, under these circumstances, must be certainly, to say the least of it, a very rare occurrence. It may, however, be true that the female may possess less coolness and deliberation in husbanding her strength, and, by an early expenditure of more than may be necessary, sooner produce a state of exhaustion.

The following are the usual exceptions where the crime may be perpetrated, notwithstanding the parties may approach nearly to a mental and physical equality:

1. Where narcotics or intoxicating liquids have been administered to her.

2. Where she falls into a state of syncope, from terror and exhaustion.

3. Where many are engaged against her, and in such case there are usually many marks of injury about her person.

4. Where she yields under the influence of some severe threat, such as that of death or duress.

The crime may be perpetrated under any of these circumstances, none of which will furnish any excuse or palliation.

7. Rape on Children Under Ten Years of Age.

As has been seen by our statute, in committing this offence it is not necessary that any force should be used; which is an essential fact necessary to be proved where the prosecutrix is of ten years or upwards. The consideration of offences of this character is to be had without any reference to the consent or non-consent of the child, which is considered as immaterial. Clear and distinct evidence ought to be given that the child is under ten years of age.1 Evidence by the child herself that she was ten years old on a particular day, her mother being sick at home and her father being unable to state the precise time of her birth, was held insufficient. A postponement of the trial will be had when the child was of such tender age that she was not capable of giving testimony.3

8. Whether Prisoner can be Convicted of an Assault with Intent to Commit a Rape upon a Female under Ten Years of Age, when she gave her Consent.

It has already been stated that upon 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 for a common assault. Although, so far as the commission of this crime itself is concerned, under our statute it makes no difference, where the female is under ten years of age, whether consent be given or not. A question seems to have arisen, under a similar English statute, whether a party could be convicted for assault with intent to commit the offence upon a female under the age of ten years, when she gave her consent. The principle of law involved was whether in law there could be an assault unless it be against consent; and the courts held in some cases that the indictment should have been for an attempt to commit the offence, and not for an assault with intent to commit it.1

In Reg v. Day, COLERIDGE, J., observed: "There is a difference between consent and submission. Every consent involves a submission, but it by no means follows that a mere submission involves consent. It would be too much to say that an adult submitting quietly to an outrage of this description was not consenting. On the other hand, the mere submission of a child, when in the power of a strong man, and most probably acted upon by fear, can by no means be taken to be such a consent as will justify the prisoner in point of law. You will, therefore, say whether the submission of the prosecutrix was voluntary on her part or the result of fear, under the circumstances in which she was placed. If you are of the latter opinion, you will find the prisoner guilty on the second count of the indictment." "

In The Peo. v. Stamford, which was an indictment for an assault with intent to commit a rape upon an infant of seven years of age, it was uncertain whether the act was committed with or without her consent, and the counsel for the prisoner held it was the duty of the jury to acquit. The court said the statute of Elizabeth and the act of Assembly of New York had made an innovation in the common law. Formerly force was necessary in the commission of a rape in all cases; now, by the statute above mentioned, carnal knowledge of an infant under ten years of age was felony, whether she consented or not. It was obvious the statute did not apply to an attempt to commit a rape. It was therefore as at common law; but that it was almost impossible to suppose consent from an infant of seven years of age, that the

11 Russ. on Cr., 697,

2 9 C. & P., 722.

act was obviously against her will, and that the presumption of law was so strong as to admit of proof of force.'

9. Principals and Accessories.

All persons present aiding, assisting or encouraging a man to commit a rape may be indicted as principals in the second degree, whether they be men or women.2

Under the common law, when it was held that a boy under the age of fourteen could not be convicted of a rape, it was nevertheless held that, if he aids and assists another person in the commission of the offence, he is not the less a principal in the second degree if it appear, under all the circumstances, that he had a mischievous disposition.3

It was also held that the husband of a woman may be likewise guilty as a principal in the second degree by assisting another person to commit a rape upon his wife; for though in marriage the wife has given up her body to her husband, yet he cannot compel her to prostitute herself to another.4

XXXVI.

RECEIVING PROPERTY WHICH HAS BEEN STOLEN OR

EMBEZZLED.

At the common law, receivers of stolen goods were punishable only as for a misdemeanor, even after the thief had been convicted of felony in stealing them. But by the New York statute the offence is, in the discretion of the court, punishable either as a felony or as a misdemeanor, and the provisions of the Revised Statutes are made applicable both to property taken by larceny and by embezzlement.

1. Statutory Enactments.

Every person who shall buy or receive in any manner, upon any consideration, any personal property of any value whatsoever, that shall have been feloniously taken away or stolen from any other, knowing the same to have been stolen, is guilty of a felony."