R. v. Morris, 10 Cox, 480; R. v. Basset, Greaves, Cons. Acts, 72; R. v. Friel, 17 Cox, 325.

Where an assault charged in an indictment and that referred to in a certificate of dismissal by a magistrate appear to have been on the same day it is prima facie evidence that they are one and the same assault, and it is incumbent on the prosecutor to show that there was a second assault on the same day if he alleges that such is the case. The defendant having appeared before the magistrate the recital in the certificate of the fact of a complaint having been made and of a summons having been issued is sufficient evidence of those facts: R. v. Westley, 11 Cox, 139.

When a question of title to lands arises before him the magistrate's jurisdiction is at an end, and he cannot inquire into or adjudicate upon an excess of force or violence which may be used in the assertion of a title to lands: R. v. Pearson, 11 Cox, 493; s. 842, post.

A person making a bona fide claim of right to be present as one of the public in a law court at the hearing of a suit is not justified in committing an assault upon a police constable and an official who endeavours to remove him. Such a claim of right does not oust the jurisdiction of the magistrate who has to try the charge of assault, and he may refuse to allow cross-examination and to admit. evidence in respect of such a claim: R. v. Eardly, 49 J. P. 551.

By s. 864, post, a magistrate cannot now try summarily a charge of assault if either the person aggrieved or the accused objects thereto.

PART XXI.

RAPE AND PROCURING ABORTION.

DEFINITION.

266. Rape is the act of a man having carnal knowledge of a woman who is not his wife without her consent, or with consent which has been extorted by threats or fear of bodily harm, or obtained by personating the woman's hus band, or by false and fraudulent representation as to the nature and quality of the act.

2. No one under the age of fourteen years can commit this offence.

"3. Carnal knowledge is complete upon penetration to any, even the slightest degree, and even without the emission of seed. R. S. C. c. 174,

s. 226."

Sub-section 3 now forms s. 4a, in Part I. (amendment of 1893).

The words in italics reproduce the Imperial Act 48 & 49 V. c. 69. s. 4.

PUNISHMENT.

267. Every one who commits rape is guilty of an indictable offence and liable to suffer death, or to imprisonment for life. R. S. C. c. 162, s. 37. 24-25 V. c. 100, s. 48 (Imp.).

The repealed section enacted a minimum punishment of seven years.

ATTEMPT.

268. Every one is guilty of an indictable offence and liable to seven years' imprisonment who attempts to commit rape. R. S. C. c. 162, s. 38.

The repealed section enacted a minimum punishment of two years.

Rape and attempt to commit rape are not triable at quarter sessions, s. 540. See appendix to 2nd edit. of this book for a note on rape by Greaves.

Indictment.

that A. B. on

in and upon

one C. D., a woman, unlawfully and violently did make an assault and her the said C. D. violently and without her consent unlawfully did ravish and carnally know.

Averment of woman's age unnecessary: 2 Bishop, Cr.

Proc. 954.

Rape has been defined to be the having unlawful and carnal knowledge of a woman, by force, and against her will: 1 Russ. 904.

To constitute the offence there must be penetration, or res in re, in order to constitute the "carnal knowledge which is a necessary part of the offence. But a very slight penetration is sufficient, though not attended with the deprivation of the marks of virginity: 1 Russ. 912.

A boy under fourteen years of age is presumed by law incapable to commit a rape, and therefore he cannot be guilty of it, nor of an assault with intent to commit it; and no evidence is admissible to show that, in point of fact, he could commit the offence of rape: see R. v. Read, 1 Den. 377. But on an indictment for rape he may be found guilty of a common assault or of an indecent assault: s. 713; R. v. Brimilow, 2 Moo. 122. A husband cannot be guilty of a rape upon his wife, but he may be guilty as an accessory before the fact or an aider and abettor to it: see R. v. Audley (Lord), 3 St. Tr. 402. The offence of rape may be committed though the woman at last yielded to the violence, if such her consent was forced by fear of death or by duress.

It will not be any excuse that the woman was first taken with her own consent if she were afterwards forced against her will; nor will it be an excuse that she consented after the fact, or that she was a common strumpet, or the concubine of the ravisher. Circumstances of this kind, however, though they do not necessarily prevent the offence from amounting to a rape, yet are material to be left to the jury in favour of the party accused, especially in doubtful cases. The notion that if the woman conceived it could not be a rape, because she must, in such case, have consented, appears to be quite exploded: 1 Russ. 905.

Upon the trial of an indictment for rape upon an idiot girl the proper direction to the jury is that if they are satisfied that the girl was in such a state of idiocy as to

be incapable of expressing either consent or dissent, and that the prisoner had connection with her without her consent, it is their duty to find him guilty: R. v. Barratt, 12 Cox, 498. In R. v. Fletcher, 10 Cox, 248, the law was so given, but the evidence of non-consent was declared insufficient. The accused upon such an indictment may now be found guilty of the offence provided for in s. 189, ante, if the evidence warrants it, s. 713.

If a woman is incapable of resisting it is no defence that she did not resist: R. v. Fletcher, 8 Cox, 131, Bell, 63; R. v. Camplin, 1 Den. 89; R. v. Flattery, 13 Cox, 388; R. v. Cardo, 17 O. R. 11. If a man has or attempts to have connection with a woman while she is asleep it is no defence that she did not resist, as she is then incapable of resisting. The man can therefore be found guilty of a rape, or of an attempt to commit a rape: R. v. Mayers, 12 Cox, 311; R. v. Young, 14 Cox, 114.

ness.

It is clear that the party ravished is a competent witBut the credibility of her testimony must be left to the jury, upon the circumstances of fact which concur with that testimony. Thus if she be of good fame; if she presently discovered the offence and made search for the offender; if she showed circumstances and signs of the injury, whereof many are of that nature that women only are proper examiners; if the place where the act was done were remote from inhabitants or passengers; if the party accused fled for it; these, and the like, are concurring circumstances which give greater probability to her evi dence. But if, on the other hand, the witness be of evil fame, and stand unsupported by others; if, without being under the control or the influence of fear, she concealed the injury for any considerable time after she had the opportunity of complaining; if the place where the fact is alleged to have been committed was near to persons by whom she might probably have been heard, and yet she made no outcry; if she has given wrong descriptions of the

place; these, and the like circumstances, afford a strong though not conclusive presumption that her testimony is feigned: 1 Russ. 692.

The character of the prosecutrix as to general chastity may be impeached by general evidence, as by showing her general light character, etc., but evidence of connection with other persons than the prisoner cannot be received.

In R. v. Hodgson, R. & R. 211, the woman in the witness box was asked: Whether she had not before had connection with other persons, and whether she had not before had connection with a particular person (named). The court ruled that she was not obliged to answer the question. In the same case the prisoner's counsel offered a witness to prove that the woman had been caught in bed about a year before this charge with a young man. The court ruled that this evidence could not be received. These rulings were subsequently maintained by all the judges.

Although you may cross-examine the prosecutrix as to particular acts of connection with other men (and she need not answer the question unless she likes), you cannot, if she deny it, call witnesses to contradict her: R. v. Cockcroft, 11 Cox, 410; R. v. Laliberté, 1 S. C. R. 117.

But she may be cross-examined as to particular acts of connection with the prisoner, and if she denies them witnesses may be called to contradict her: R. v. Martin, 6 C. & P. 562; R. v. Riley, 16 Cox, 191, 18 Q. B. D. 481, Warb. Lead. Cas. 128.

On the trial of an indictment for an indecent assault, the defence being consent on the part of the prosecutrix, she denied on cross-examination having had intercourse with a third person, S. Held, that S. could not be examined to contradict her upon this answer. This rule applies to cases of rape, attempts to com mit a rape, and indecent assaults in the nature of attempts to commit a rape: R. v. Holmes, 12 Cox, 137.