We cannot well escape the conclusion that this case falls under the condemnation of the rule that where the owner of property by himself or his agent, actually or constructively, aids in the commission of the offence, as intended by the wrongdoer, by performing or rendering unnecessary some act in the transaction essential to the offence, the would-be criminal is not guilty of all the elements of the offence. Here Mr. Layer, acting for the owner of the property, packed or superintended the packing of the four barrels of meat, as suggested by the owner's agent in the matter, Dolan, and caused the same to be placed on the platform, knowing that the accused would soon arrive to take them, under an arrangement between him and its agent, and directed its platform boss, when he inquired as to the purpose of so placing the barrels, "Let them go; they are for some man, and he will call for them." He, from the standpoint of such employé, directed the latter to deliver the barrels to the man when he called, the same in all respects as was done in Williams v. State, supra. He substantially made such delivery, by treating the accused when he arrived upon the scene as having a right to take the property, In that the design to trap a criminal went a little too far, at least, in that it included the doing of an act, in effect preventing the taking of the property from being characterized by any element of trespass.

The logical basis for the doctrine above discussed is that there can be no larceny without a trespass. So if one procures his property to be taken by another intending to commit larceny, or delivers his property to such other, the latter purposing to commit such crime, the element of trespass is wanting, and the crime not fully consummated, however plain may be the guilty purpose of the one possessing himself of such property. That does not militate against a person's being free to set a trap to catch one whom he suspects of an intention to commit the crime of larceny, but the setting of such trap must not go further than to afford the would-be thief the amplest opportunity to carry out his purpose, formed without such inducement on the part of the owner of the property, as to put him in the position of having consented to the taking. If I induce one to come and take my property, and then place it before him to be taken, and he takes it with criminal intent, or if knowing that one intends to take my property, I deliver it to him, and he takes it with such intent, the essential element of trespass involving nonconsent requisite to a completed offence of larceny does not characterize the transaction, regardless of the fact that the moral turpitude involved is no less than it would be if such essential were present. Some writers in treating this subject give so much attention to condemning the deception practiced to facilitate and encourage the commission of a crime by one supposed to have such a purpose in view, that the condemnation is liable to be viewed as if the deception were sufficient to excuse the would-be criminal, or to preclude his being prosecuted; that there is a question of good morals involved as to both

parties to the transaction, and that the wrongful participation of the owner of the property renders him and the public incapable of being heard to charge the person he has entrapped with the offence of larceny. That is wrong. It is the removal from the completed transaction, which from the mental attitude of the would-be criminal may have all the ingredients of larceny, from the standpoint of the owner of the property of the element of trespass or nonconsent. When such element does not characterize a transaction involving the full offence of larceny, so far as concerns the mental purpose of such would-be criminal is concerned, is often not free from difficulty, and courts of review should incline quite strongly to support the decision of the trial judge in respect to the matter, and not disturb it except in a clear case. It seems that there is such a case before us.

If the accused had merely disclosed to Dolan, his ostensible accomplice, a purpose to improve the opportunity when one should present itself to steal barrels of meat from the packing company's loading platform, and that had been communicated by Dolan to the company, and it had then merely furnished the accused the opportunity he was looking for to carry out such purpose, and he had improved it, the situation would be quite different. The mere fact that the plan for obtaining the property was that of the accused, under the circumstances of this case, is not controlling. Dolan, as an emissary of the packing company, as we have seen, was sent to the accused to arrange, if the latter were so disposed, some sort of a plan for taking some of the company's property with the intention of stealing it. Though the accused proposed the plan, Dolan agreed to it, which involved a promise to assist in carrying it out, ostensibly as an accomplice, but actually as an instrument of the packing company. That came very near, if it did not involve, solicitation by the company, in a secret way, for the accused to take its property as proposed. With the other element added of placing such property on the loading platform for the accused to take pursuant to the agreement, with directions, in effect, to the person in charge of the platform, to let the accused take it when he came for that purpose, we are unable to see any element of trespass in the taking which followed. The packing company went very significantly further than the owner of the property did in Rex v. Egginton, supra, which is regarded as quite an extreme case. It solicited the opportunity to be an ostensible accomplice in committing the offence of larceny instead of being solicited in that regard, and the property was in practical effect delivered to the would-be thief instead of its being merely placed where he could readily trespass upon the rights of the packing company by taking it. When one keeps in mind the plain distinction between merely furnishing opportunity for the execution of a formed design to commit larceny and negotiations for the purpose of developing a scheme to commit the offence, regardless of who finally proposes the plan jointly adopted, and not facilitating the execution of the plan by placing the property pur

suant to the arrangement where it can readily be taken, but in practical effect, at least, delivering the same into the possession of the would-be thief, one can readily see that the element of trespass, involving consent, is present in the first situation mentioned, and not in the last, and that the latter pretty clearly fits the circumstances of this case.

The judgment is reversed, and the cause remanded for a new trial.

SECTION III.

Consent of the Injured Party.

REGINA v. CASE.

CROWN CASE RESERVED. 1850.

[Reported 4 Cox C. C. 220.]

THE following case was reserved by the Recorder of Dover: William Case was tried before me at the last April Quarter Sessions for the borough of Dover, for an assault upon Mary Impitt.

The defendant was a medical practitioner. Mary Impitt, who was fourteen years old, was placed under his professional care by her parents, in consequence of illness, arising from suppressed menstruation; and on the occasion of her going to his house, and informing him she was no better, he observed, "Then I must try further means with you." He then took hold of her, and laid her down in his surgery, lifted up her clothes, and had carnal connection with her, she making no resistance, believing (as she stated) that she was submitting to medical treatment for the ailment under which she labored. The defendant's counsel, in his address to the jury, contended that the girl was a consenting party; therefore, that the charge of assault could not be sustained.

I told the jury that the girl was of an age to consent to a man having carnal connection with her, and that if they thought she consented to such connection with the defendant he ought to be acquitted; but that if they were satisfied she was ignorant of the nature of the defendant's act, and made no resistance, solely from a bona fide belief that the defendant was (as he represented) treating her medically, with a view to her cure, his conduct, in point of law, amounted to an assault.

The jury found the defendant guilty, and he was sentenced to be imprisoned for eighteen calendar months in the borough gaol, where he now remains. I have to pray the judgment of my lords, justices, and

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others, sitting in a court of appeal, whether my direction to the jury was correct in point of law. Horn, for the prisoner. The consent of the girl is found; for consenting and not resisting are synonymous. [COLERIDGE, J.-They are clearly used in a different sense here. WILDE, C. J. If a medical man uses an injurious ointment the patient does not resist its application; but it cannot be said that he consents. ALDERSON, B.- - How does this differ from the case of a man pretending to be the husband of the woman?] Fraud is not expressly found in this case. It ought to have been left to the jury expressly to say whether the act done was necessary or proper. It is consistent with the verdict that he may have treated her medically. [ALDERSON, B. He pretended that that was medicine which was not; hereby that is fraud.] In the notes to R. v. Read (1 Den. C. C. 379), it is said, "It seems from R. v. Martin (2 Moo. C. C. 123; 9 Car. & P. 213); R. v. Banks (8 Car. & P. 574); R. v. Meredith (8 Car. & P. 589), first, that the stat. 9 Geo. 4, c. 31, s. 17, does not deprive a girl under ten years of age of the power to consent which she had at common law; secondly, that consequently if she consents to the mere incomplete attempt, such an attempt is not punishable as an assault; thirdly, that it is punishable as an attempt to commit a felony, viz., as a misdemeanor;" and further, an assault seems to be any sort of personal ill-usage, short of a battery done to another against his consent. Therefore, such act, done with consent, is no breach of the peace or crime." Children of tender age are, therefore, capable of consenting; so is an idiot (R. v. Ryan, 2 Cox C. C. 115). [PATTESON, J.- What do you say the jury found?] It is consistent with the verdict that he may have treated her medically. [COLERIDGE, J. Suppose even that he did the act bonâ fide for the purpose which he pretended, would that justify him? Had he a right to pollute the child's body?] Certainly not, morally; but the question is, was it an assault in the eye of the law, there being consent in fact. [PLATT, B.-The girl did not consent to that which was done. She did not know the nature of the act.] In Read's case (1 Den. C. C. 377), the jury found that, from her tender years, the child did not know what she was about. Yet, as they found that she assented, the prisoners were held entitled to an acquittal upon the indictment, which charged them with an assault. [ALDERSON, B. It must be taken that there was actual consent in that case.] Even if fraud was established, still there was no assault. The doctrine of rape per fraudem stands upon the decision of two judges, Alderson, B. and Gurney, B., in R. v. Williams (8 Car. & P. 286), and R. v. Saunders (ib. 265). In those cases the defendants were indicted for rape, and it appearing that the consent of the woman in each case had been obtained under the belief that the man was her husband, the learned judges directed that the prisoners should be acquitted of the charge of rape, but convicted of an assault. [ALDERSON, B.-In the case before me I followed several previous decisions, although I doubted them.] If they were guilty of

an assault, and penetration was proved, why were they not guilty of rape? [ALDERSON, B. Suppose a woman is ravished whilst under the influence of laudanum. I recollect a case before me on the Home Circuit, where, at the time when the offence was committed, the woman was completely insensible from drunkenness. I doubted whether the prisoner ought to be convicted of rape; but upon consultation with Lord Denman I held that he might.] R. v. Camplin (1 Den. C. C. 89; 1 Cox C. C. 220), was a somewhat similar case, but different in this, that the prisoner gave the woman the liquor which made her drunk. He therefore contributed to the production of the state of insensibility during which the offence was committed; and if the woman does not consent as long as she has the power of consenting or resisting, a reasonable inference that she did not consent may be drawn from her previous conduct; the act would be done against "her permanent will," as Lord Denman expressed it in R. v. Camplin; but if fraud dispenses with the necessity of resistance, any deceit will have that effect; and it would be an assault if the woman consented, upon a false representation that the man would marry her, or that medically it would be beneficial to her. If a surgeon cuts off a leg or draws a tooth, and the patient consents because he believes that he is being medically treated, could he afterwards indict him for an assault? Again, the charge of rape includes an assault; and is there to be one kind of consent for an assault and another kind of consent to get rid of the charge of rape? The cases, therefore, it is submitted, deserve to be reconsidered. [WILDE, C. J. There are two cases which clearly show that this defendant was guilty of an assault, and you say that the court ought to have held him guilty of rape; but it would not be less an assault if it should be held to be rape.] If upon an indictment for assault a rape is proved, the misdemeanor merges in the felony; but it is held that if the connection takes place by consent obtained by fraud it is not rape. If not, neither is it an assault.

Barrow, contra, was not called upon.

WILDE, C. J. I have no doubt in this case that the direction of the learned recorder was perfectly correct. The objection is to the latter part of the charge; for he first of all tells the jury that the girl was of an age to consent, and that, if she consented, the prisoner must be acquitted. Therefore, he treats her as competent to consent, and her consent as a ground of acquittal; but then, that direction is qualified by what he adds afterwards, that if they were satisfied that she was ignorant of the nature of the act, and made no resistance solely from a bona fide belief that the defendant was, as he represented, treating her medically with a view to her cure, his conduct amounted to an assault. That is the part which is objected to. The jury found the prisoner guilty. The girl was of an age at which she might be totally ignorant of the nature of the act, morally or religiously, and of the effect which it might have upon her character and station in life; and she was sent by her parents to the defendant to be medically treated by him. It is