be safe to observe. If the prosecutrix be of good fame; if she presently discover the offence, and make search for the offender; if the party accused flee; these and the like circumstances give greater probability to her evidence; but on the contrary, if she be of evil fame, and stand unsupported by others; if she conceal the injury for any considerable time after she has had opportunity to complain; if the place, where the fact was alleged to be committed, be where it was possible she might have been heard, and she made no outery; to which ought to be added another circumstance, equally strong, if the prosecutrix voluntarily continue her acquaintance and familiar or friendly intercourse with the accused, after the fact, without instituting a prosecution against him-these and the like circumstances carry a strong but not a conclusive presumption that her story is fictitious. (c)

Principal and accessaries.] All who are present, of either sex, aiding in the perpetration of a rape, are principals, and liable to the same punishment.(d) And though a male infant under the age of fourteen years is presumed to be incapable of committing a rape, yet he may be guilty as an abettor, or principal in the second degree, if shown to possess a mischievous disposition.(e) And it has been decided in Massachusetts, that he may be indicted for an assault with intent to commit a rape.(ƒ) But in England a contrary rule prevails. (g) And there may be accessaries before and after the fact in this offence; for though it be made felony by a statute which speaks only of those who commit the offence, yet accessaries before and after are consequentially included. (h) An indictment charging the prisoner both as principal in the first degree and as aiding and abetting other men in committing a rape, was held, after conviction, to be valid, upon the count charging the prisoner as principal. Upon such an indictment, it was held that evidence might be given of several rapes on the same woman, at the same time, by the prisoner and other men, each assisting the other in turn, without putting the prosecutor to elect on which count to proceed. (i)

Indictment.] As we have before remarked, force is necessary to constitute this crime. It is therefore necessary to state in the indictment that the offender did "forcibly ravish" the female; and the omission of these words will not be supplied by an averment that the offender did "carnally know," &c.(k) The words "forcibly ravished," which are used in the

(c) 1 Hale's P. C. 663. 4 Black Com.

213.

(d) 1 Hawk. ch. 41, § 10. 2 R. S. 699, § 6.

(e) Hale's P. C. 630.

(f) 2 Pick. 380.

(g) 3 Car. & Payne, 396.
(h) 1 Russ. on Čr. 557.
(i) 1 Moody's C. C. 354.

(k) 1 Russ. on Cr. 561. 1 Hale, 632.

statute, imply force and violence in the man and want of consent in the woman. The indictment need not aver, therefore, that the rape was committed against the will of the woman. (1) It does not seem clear whether the averment that the offender "carnally knew" is necessary to be added. It is urged that the word "ravished" includes the charge of carnal knowledge;(m) and this was undoubtedly the opinion of the revisers when they used merely the words "forcibly ravish," in defining the crime of rape. But as Lord Hale and Lord Coke say that both charges ought to be inserted, it would be very unsafe, in an indictment at common law, to omit either.(n) The indictment usually concludes "against the form of the statute;" but as the offence was a felony at common law, such a conclusion is probably unnecessary. (o) The customary conclusion, "against the peace," will doubtless be sufficient. (p)

Evidence.] It is clear that the party ravished is a competent witness; and indeed she is so much considered a witness of necessity that where a husband was charged with having assisted another man in ravishing his own wife, she was admitted as a witness against her husband. (1) But the credibility of the witness is to be left to the jury, upon the concurring circumstances. And the character of the prosecutrix as to general chastity may be impeached by general evidence. (1) And in a recent case in our supreme court it was decided, that an inquiry may be made of the prosecutrix whether she had had previous connexion with other men ;(r) and that she may be shown to be in fact a common prostitute. So also a previous voluntary connexion between her and the prisoner may be proved;(s) and evidence may be given of particular acts and associations, indicating on her part a want of chastity. The same rules of evidence are applicable to a trial for a simple assault and battery on a female, followed with a carnal knowledge.(t) In such cases the magistrate before whom the complaint was made cannot be called to state what the prosecutrix testified before him as to her having had previous connexion with other men, if the inquiry is not made for the purpose of showing a discrepancy in her testimony.(u)

Presumptive evidence is also admissible to prove the offence.(v)

2d. Rape on children within the age of ten years.] A rape upon children under the age of ten years was made a capital offence in England, as carly as the reign of Queen Elizabeth; and the section of our revised statutes providing for the punishment of persons convicted of rape in "carnally and unlawfully knowing" any female child under the age of ten years, (w) is nearly in the words of the statute of 18 Eliz. ch. 7, § 4. These statutory provisions have made an innovation upon the common law. Formerly, force was, in all cases, necessary to the commission of a rape. Now, by statute, the unlawful carnal knowledge of an infant under ten years of age is a felony, whether she consented or not. Indeed, it is almost impossible to suppose consent from an infant at this tender age. The presumption of law, that it was against her will, is so strong as to amount to proof of force.(x)

Indictment.] In drawing the complaint or indictment under the subdivision of the section of the statute respecting a rape upon a child under ten years of age, it is necessary to pursue the words of the act, and charge that the defendant "carnally and unlawfully knew" the party injured, she being under the age of ten years; omitting the word "ravished," which implies violence. (y) And such complaint or indictment ought to conclude," against the form of the statute," because the crime, as well as the punishment, is created by that statute.(z)

Evidence.] As to the testimony of the party aggrieved, the rule adopted as to the admissibility of children in other cases, is applicable to this, viz. that the admissibility of children is regulated, not by their age, but by their apparent sense and understanding. Children of any age may be examined upon oath, if capable of distinguishing between good and evil; but they cannot be examined in any case without oath. (a) The declarations of the child are inadmissible; though the fact of her having complained of the injury recently after its having been received, is evidence in corroboration. (b) By a capability of distinguishing between good and evil must be understood a belief in God, or in a future state of rewards and punishments; from which the court may be satisfied that the witness entertains a proper sense of the danger and impiety of falsehood. (c) Where the child has appeared not sufficiently to understand

(w) 2 R. S. 663, § 22.

(b) Id. ib. In the case of State v. Le (x) People v. Stamford, 2 Wheel. Cr. Blanc, (1 Const. Rep 354,) the testimoCa. 152. 1 East's P. C. 436.

(y) Davis' Just. 371.

(2) 1 Russ. on Cr. 565. People v.

Enoch, 13 Wend. 159.

(a) Roscoe's Cr. Ev. 94, 710.

ny of an infant, corroborated by circumstances, was held sufficient to justify a conviction for a rape.

(c) 1 Russ. on Cr. 565.

the nature and obligation of an oath, judges have often put off the trial of a prisoner, directing that the child should, in the meantime, be properly instructed as to the nature and obligation of an oath.(d)

Assault, with intent to ravish.] The punishment for an assault, with intent to commit a rape, is imprisonment in a state prison for a term not exceeding five years, or by a fine not exceeding $500, or by both such fine and imprisonment. (e) If the assault was made with any deadly weapon, the punishment is increased to imprisonment in a state prison not more than ten years. (f) But no person can be convicted for an assault, with intent to commit a rape, when it shall appear that the crime was actually committed; nor where he shall have been acquitted upon a former trial for the principal offence.(g)

Where there is no reason to expect that the facts and circumstances of the case, when given in evidence, will establish that the crime of rape has been completed, the proper course will be to prefer a complaint before a justice, or an indictment before the grand jury, for an assault with intent to ravish. But this course should not be adopted, where there is a probability that the higher offence will be proved; as it is doubtful whether, upon an indictment for an assault, the prisoner can be convicted if a rape is proved to have been committed.()

If the offender, however, is indicted for a rape, he may be convicted of an assault, in a case where the facts proved are not sufficient to establish a rape.(i) It has been decided in Massachusetts, that an infant under the age of fourteen years may be indicted for an assault, with intent to commit a rape. (k) A contrary decision, however, has taken place in England. (1) But it seems to us that the decision in the Massachusetts case is by far the most reasonable. The maxim, that an infant under fourteen is presumed unable to commit a rape, originated in ancient times, when rape was punishable with death; and the law was es tablished in favor of life. It ought not to be applied, by analogy, to an inferior offence which is not punishable with death. It is said that the essence of the crime of rape is the violence done to the person and feelings of the woman.(m) An injury to the feelings (and, in some cases, to

the person,) may be inflicted by a boy under fourteen years, as much as by one over that age; and where there is a guilty intention in the perpetrator of the injury, there seems to be no good reason for exonerating him from punishment on account of his physical incapacity.

Evidence.] Prove an assault, with such circumstances as show t'at it was an attempt to commit a rape, the offence being incomplete for want of evidence of penetration. If upon this indictment an actual rape be proved, the defendant must be acquitted. (n)

3. THE FORCIBLE AND UNLAWFUL TAKING AWAY OF FEMALES, AND COMPELLING THEM TO MARRY, &c.

By the revised statutes, any person who shall take any woman unlawfully, against her will, and by force, menace or duress, compel her to marry him or another, or to be defiled, or shall take her with that intent, though frustrated, may, on conviction, be punished by imprisonment in the state prison not less than ten years. (1) And every person who shall take away any female under the age of fourteen years from her father, mother, guardian, or other person having the legal charge of her person, without their consent, either for the purpose of prostitution, concubinage, or marriage, may be imprisoned not more than three years and fined not more than $1000.(o)

The 24th and 25th sections, it will be seen, contemplate a taking against the will of the female, whatever her age may be; and the 26th section refers to the taking of a female under the age of fourteen, without the consent of her parents, guardians, &c. whether it was against her own will or not. The 24th and 25th sections were doubtless intended to reach the case of a forcible taking of a female above the age of fourteen, or of one within that age who has no parents, guardians, &c. As regards females within the age of fourteen, who have parents, guardians, &c. the offence may be completed without making use of any force; and notwithstanding the infant herself may have consented; provided the taking was without the consent of such parents. guardians, &c. This wise provision was intended for the protection of infants of a tender age who have not sufficient capacity to act or judge for themselves, or to resist the allurements and promises of older and more artful persons. An illegitimate child is within the protection of the statute.(p) It is no legal excuse for this offence that the defendant, being related to the girl's fa

(n) 1 East's P. C. 411, 440. Matt. Dig. 59.

(1) 2 R. S. 663, §§ 24, 25.

(0) Idem, § 26.

(p) 2 Strange, 1162. Hawk. P. C. b. 1, ch. 41, s. 14.