REGINA v. FLATTERY.

(Court for Crown Cases Reserved, 1877. 2 Q. B. Div. 410.)

KELLY, C. B.1 I think this conviction ought to be affirmed. Mr. Lockwood has ably argued that there was consent on the part of the prosecutrix, and therefore no rape. But, on the case as stated, it is plain that the girl only submitted to the plaintiff's touching her person in consequence of the fraud and false pretenses of the prisoner, and that the only thing she consented to was the performance of a surgical operation. Up to the time when she and the prisoner went into the room alone, it is clearly found on the case that the only thing contemplated either by the girl or her mother was the operation which had been advised. Sexual connection was never thought of by either

1 The statement of facts and the concurring opinions of Mellor, Denman and Field, JJ., and Huddleston, B., are omitted.

"The request in substance is as follows: That, inasmuch as nonconsent is to be proved by the resistance made, therefore, if the resistance falls short of the extremest limit that could have been made, the deficiency necessarily shows consent, and should be so charged as matter of law. The fallacy lies in the assumption that the deficiency in such cases necessarily shows consent. If the failure to make extreme resistance was intentional, in order that the assailant might accomplish his purpose, it would show consent; but without such intent it shows nothing important whatsoever. The whole question is one of fact, and the court committed no error in so leaving it to the jury.” Park, C. J., in State v. Shields, 45 Conn. 256 (1877).

At common law a boy under 14 years of age is conclusively presumed to be physically incapable of committing rape. Reg. v. Waite, L. R. 2 Q. B. 600 (1892); State v. Handy, 4 Har. (Del.) 566 (1845); State v. Pugh, 52 N. C. 61 (1859); Foster v. Commonwealth, 96 Va. 306, 31 S. E. 503, 42 L. R. A. 589, 70 Am. St. Rep. 846 (1898); Chism v. State, 42 Fla. 232, 28 South. 399 (1900). In some jurisdictions it is held that the presumption of incapacity may be rebutted. People v. Randolph, 2 Parker, Cr. R. (N. Y.) 174 (1855); Hiltabiddle v. State, 35 Ohio St. 52, 35 Am. Rep. 592 (1878); Wagoner v. State, 5 Lea (Tenn.) 252, 40 Am. Rep. 36 (1880); Heilman v. Commonwealth, 84 Ky. 457, 1 S. W. 731, 4 Am. St. Rep. 207 (1886); Gordon v. State, 93 Ga. 531, 21 S. E. 54, 44 Am. St. Rep. 189 (1893). In Louisiana there is no presumption as to physical capacity. State v. Jones, 39 La. Ann. 935, 3 South. 57 (1887).

On an indictment under a statute providing: "If any person shall unlawfully and carnally know any woman child under the age of fourteen years, every such unlawful and carnal knowledge shall be felony, and the offender thereof shall suffer as for rape”—it was held that no presumption of incapacity to commit the offense arose from the fact that the defendant was under 14 years of age. State v. Coleman, 54 S. C. 162, 31 S. E. 866 (1899). Cf. McKinny v. State, 29 Fla. 565, 10 South. 732, 30 Am. St. Rep. 140 (1892).

Penetration alone, force and nonconsent being proven, is sufficient both by the early common law (see 1 East, P. C. 436; Pennsylvania v. Sullivan, Add. [Pa.] 143 [1793]; Comstock v. State, 14 Neb. 205, 15 N. W. 355 [1883]; contra, Blackburn v. State, 22 Ohio St. 102 [1871]), and by statute in England and most states (see 24 & 25 Vict. c. 100, § 63; Waller v. State, 40 Ala. 325 [1867]: Ellis v. State, 25 Fla. 702, 6 South. 768 [1889]; Taylor v. State, 111 Ind. 279, 12 N. E. 400 [1887]; State v. Hargrave. 65 N. C. 466 [1871]; People v. Crowley, 102 N. Y. 234, 6 N. E. 384 [1886].

The crime of rape is not committed if the woman consent after the assault, but before penetration. Reg. v. Hallet, 9 C. & P. 748 (1841); Smith v. State, 12 Ohio St. 466, 80 Am. Dec. 355 (1861); State v. Cunningham, 100 Mo. 382, 12 S. W. 376 (1899). Otherwise, if she consent only after penetration. State v. Welch, 191 Mo. 179, 89 S. W. 945 (1905).

of them. And after she was in the room alone with the prisoner, what the case expressly states is that the girl made but feeble resistance, believing that she was being treated medically, and that what was taking place was a surgical operation. In other words, she submitted to a surgical operation, and nothing else. It is said, however, that having regard to the age of the prosecutrix, she must have known the nature of sexual connection, I know no ground in law for such a proposition; and, even if she had such knowledge, she might suppose that penetration was being effected with the hand or with an instrument. The case is, therefore, not within the authority of those cases which have decided-decisions which I regret that, where a man by fraud induces a woman to submit to sexual connection, it is not rape.

Conviction affirmed.

STATE v. HAINES.

(Supreme Court of Louisiana, 1899. 51 La. Ann. 731, 25 South. 372, 44 L. R. A. 837.)

BLANCHARD, J. The case stands thus: (1) Thibodeaux exonerated from the charge by the verdict of not guilty as to him. (2) Haines declared, by the verdict of guilty as to him, to have committed the crime of rape upon Rose Moreaux. (3) Rose Moreaux was, at the time of the act, the wife of Haines. We are constrained to hold that this conviction cannot stand. The case as to Haines fell with the acquittal of Thibodeaux. It would be different if Haines had forced Thibodeaux by threats and violence, against his will and consent, to have sexual intercourse with the wife, who, herself, through menace and coercion exerted on the part of her husband, had been forced to yield. In such case, the husband alone might well be found guilty of the crime, and his unwilling instrument of its accomplishment acquitted.1

1 Part of this case is omitted.

"We are aware of no case holding that the husband can be guilty of the offense when he himself is the actual party to the intercourse." Davidson, P. J., in Frazier v. State (Tex. Cr. App.) 86 S. W. 754 (1905)

CHAPTER XII.

HOMICIDE.

SECTION 1.-GENERAL PRINCIPLES.

I. THE SEVERAL KINDS OF HOMICIDE.

Homicide is the killing of a man done by a man, for if it be done by an ox, a dog, or other thing, it is not properly termed homicide. For homicide is so termed from "homine" and "cædo," as it were the slaying of a man.

Bracton, f. 120 b.

Homicide, properly so called, is either against a man's own life or that of another. *

As to the first point, viz.: In what case a man shall be said to be felo de se. * * Our laws have always had such an abhorrence of this crime, that not only he who kills himself with a deliberate and direct purpose of so doing, but also in some cases he who maliciously attempts to kill another, and in pursuance of such attempt unwillingly kills himself, shall be adjudged in the eye of the law a felo de se. 1 Hawkins, P. C. c. 9.

Homicide against the life of another amounts to felony, or does not. That which amounts not to felony is either justifiable, and causes no forfeiture at all, or excusable, and causes the forfeiture of the party's goods.

Of justifiable homicide I shall premise these general rules:

First. It must be owing to some unavoidable necessity to which the person who kills another must be reduced without any manner of fault in himself.

Secondly. There must be no malice colored under pretense of necessity; for wherever a person who kills another acts in truth upon malice, and takes occasion from the appearance of necessity, to execute his own private revenge, he is guilty of murder.

*

Justifiable homicide is either of a public or of a private nature. Justifiable homicide of a public nature is such as is occasioned by the due execution or advancement of public justice. That of a private nature is such as happens in the just defense of a man's person, house, or goods.

Id. c. 10.

Excusable homicide is either per infortuniam, or se defendendo.

by mishap

Homicide per infortuniam, or by misadventure, is where a man in doing a lawful act, without any intent of hurt, unfortunately chances. to kill another. * *

Homicide se defendendo seems to be where one, who has no other possible means of preserving his life from one who combats with him on a sudden quarrel, or of defending his person from one who attempts to beat him (especially if such attempt be made upon him in his own house), kills the persons by whom he is reduced to such an inevitable necessity.

*

Thus far of each kind of excusable homicide distinctly considered. -and now I am to consider those properties wherein they both agree. And first, it seems clear that neither of these homicides are felonies, because they are not accompanied with a felonious intent, which is necessary in every felony.1

And from hence it seems plainly to follow, that they were never punishable with loss of life; and the same also further appears from the writ odio et atia, by virtue whereof, if any person committed for killing another were found guilty of either of these homicides, and no other crime, he might be bailed; and indeed it seems to be against natural justice to condemn a man to death for what is owing rather to his misfortune than his fault. * * *

Thirdly, it is also agreed, that no one can excuse the killing another, by setting forth in a special plea that he did it by misadventure, or se defendendo, but that he must plead not guilty, and give the special matter in evidence. And that whenever a person is found guilty of such homicide * * * he shall be discharged out of prison upon bail, and forfeit his goods, but that upon removing the record by certiorari into chancery, he shall have his pardon of course, without staying for any warrant from the king to that purpose, as shall be more fully shown in the second book.

Id. c. 11.

II. THE SUBJECT OF HOMICIDE.

If there be some one, who has struck a pregnant woman, or has given her poison, whereby he has caused abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.

Bracton, f. 120 b.

If a woman be quick with child and by a potion or otherwise killeth it in her womb; or if a man beat her, whereby the child dieth in her

1 Roger of Stainton was arrested because in throwing a stone he by misadventure Killed a girl. And it is testified that this was not by felony. And this was shown to the king, and the king moved by pity pardoned him the death. So let him be set free. See Sel. P. C. (Sel. Soc.) pl. 114 (1214).

24

body, and she is delivered of a dead child, this is a great misprision, and no murder; but if the child be born alive, and dieth_of the potion, battery or other cause, this is murder; for in law it is accounted. a reasonable creature, in rerum natura when it is born alive. And the book in 1 Edw. III was never holden for law. And 3 Ass. p. 2, is but a repetition of that case. And so horrible an offense should not go unpunished * and herewith agreeth Fleta; and herein the law is grounded upon the law of God. If a man counsel a woman to kill the child within her womb, when it shall be born, and after she is delivered of the child, she killeth it, the counsellor is an accessory to the murder, and yet at the time of the commandment, or counsel, no murder could be committed of the child in utero matris; the reason of which case proveth well the other case. 3 Coke, Inst. 50.

* *

* * *

REX v. BRAIN.

(Oxford Assizes, 1834. 6 Car. & P. 349.)

Murder. The prisoner was indicted for the murder of her male bastard child.

It appeared that the prisoner had been delivered of a child at Sandford Ferry, and that the body of the child was afterwards found in the water, about 15 feet from the lock gate, near the ferry house; but it was proved by two surgeons, Mr. Box and Mr. Hester, that the child had never breathed.

PARK, J. (in summing up). A child must be actually wholly in the world in a living state to be the subject of a charge of murder; but if it has been wholly born, and is alive, it is not essential that it should have breathed at the time it was killed, as many children are born alive, and yet do not Breathe for some time after their birth. But you must be satisfied that the child was wholly born into the world at the time it was killed, or you ought not to find the prisoner guilty of murder. This is not only my opinion, but the law was so laid down in a case as strong as this, by a very learned Judge (Mr. Justice Littledale) at the Old Bailey. [His Lordship read the case of Rex v. Poulton, 5 Car. & P. 329.]

Verdict-Not guilty of murder, but guilty of concealment.

1 Accord: Clarke v. State, 117 Ala. 1, 23 South. 671, 67 Am. St. Rep. 157 (1898).

2 Lord Coke cites the above quotation from Bracton as authority for this statement; sed qu. Blackstone says: "To kill a child in its mother's womb is now no murder, but a great misprision." And in Sel. P. C. (Sel. Soc.) pl. 26, is an appeal in the year 1202 for beating a woman so as to kill the child in her womb.

"The conclusion is fairly deducible from certain portions of the testimony that an attempt was made to kill the girl by the administration of cocaine while in Cincinnati, and that this was done by the defendant or at his instance, but that she was not thereby killed. It is to be remembered that,