1865 v. FISHER. J. H. Mills for the prisoner:-In all the cases decided on this section of the statute a certain portion of the machinery has been THE QUEEN removed, and some absolute damage has been done to prevent the machine from working. Here there was no taking away of any portion; no cutting; no breaking; no absolute damage. [PIGOTT, B. There was damage, because labour was required to re-instate the machine.] That is not the sort of damage intended. In order to sustain an indictment under this section, there must be some lesion. In Reg. v. Gray, (1) it was held that, to amount to a bodily injury dangerous to life, there must be a lesion of the organs, and not merely a temporary functional derangement. Here there was no lesion of the machine, but only a temporary derangement of its functions. [WILLES, J. There was a lesion in the sense of a dislocation. SHEE, J. In section 29 of the same act (2) the case is provided for, with reference to damaging steam-engines for working mines, by the words "stop, obstruct, or hinder the working of," being inserted.] That is in the prisoner's favour. He might have been convicted of the attempt; but he was not guilty of the full offence. Orridge, for the Crown, was not called upon to argue. POLLOCK, C.B. We are all of opinion that the conviction is good. It is like the case of spiking a gun, where there is no actual damage done to the gun, although it is rendered useless. The case falls within the expression "damage with intent to render useless." Can it be said that the machine was not damaged, when it was placed in such a position that, if the water had gone on boiling, the boiler would have burst? Moreover, great injury may be done to a machine by the displacement of its parts; and in this case, until the parts were replaced, the machine was useless. Surely the displacement of the parts was a damage within the 15th section, if done with intent to render the machine useless. 1865 Nov. 11. THE QUEEN v. FREDERICK BEALE. Attempt to have carnal knowledge of a girl under the age of ten-Consent. The offence of attempting to have carnal knowledge of a girl under the age of ten years may be committed, notwithstanding the girl consents to the acts done. THE following case was stated by the Deputy Assistant Judge of Middlesex : Frederick Beale was indicted and tried before me at the Middlesex Sessions, on the 23rd of August, 1865, for unlawfully attempting to have carnal knowledge of Mary Jane Catherine Green, a child under the age of ten years. The indictment also contained a second count for assaulting the said Mary Jane Catherine Green, with intent to carnally know and abuse her, and a third count for an indecent assault. Mary Jane Catherine Green proved that she was nearly ten years old; that she lived with her father and mother; and that the prisoner was a lodger in their house. On the day in question, she went into his room, when he pulled her between his knees, raised her clothes, took down his trowsers, and indecently assaulted her. He hurt her a little; on which she cried out, "Oh!" But she did nothing to prevent him, and made no objection to the act. He told her not to tell her mother; and she did not in fact tell of it until some days after, when a discharge was discovered, which the medical man proved to be gonorrhoea. Upon this evidence, it was contended by the counsel for the prisoner, that, inasmuch as the child had consented to the act done to her, there was no assault in law-an assault implying an act done with more or less of force, used against the will of the partyand that therefore the prisoner must be acquitted upon the second and third counts, both of which charged assaults. It was also contended that, although it was made a statutable offence to have carnal knowledge of a child of that age, without regard to her consent or non-consent, yet, in this case the prisoner, being only indicted for the attempt, could not be convicted upon the first count, because the child could consent to the attempt, although not to the complete offence, and, in fact, did consent. He cited 1865 the recent case of Reg. v. Johnson, (1) in support. He contended also that, upon the authority of Reg. v. Read, (2) Reg. v. Cock- THE QUEEN burn, (3) and Reg. v. Mehegan, (4) tender years did not affect the rule. I directed the jury that, if they were satisfied that the girl actually consented to the act being done to her, they should acquit the prisoner; but that consent meant a willing mind on her part to allow the act to be done; and that, if from her tender years, not knowing what was being done, she merely submitted without the exercise of any will by her, it would be such an assault in law as would support the indictment. The jury found the prisoner " Guilty, for that the child was too young to know what it was she was doing, and therefore consented to the act done by the prisoner." On the application of the counsel for the prisoner, I reserved the point; and the questions for the Court are: Whether upon the facts proved and the finding of the jury that the child consented for the reason stated, the prisoner was rightly convicted of a misdemeanor in attempting to know and abuse a child under ten years of age, as charged in the first count of the indictment, notwithstanding the consent of the child; and also whether he was guilty of an indecent assault? This case was argued on the 11th of November, 1865, before POLLOCK, C. B., WILLES, J., PIGOTT, B., and SHEE and MONTAGUE SMITH, JJ. Prentice for the prisoner:-This case was reserved upon the authority of Reg. v. Mehegan, (4) where the prisoner was convicted of assaulting and attempting to have carnal knowledge of a girl between ten and twelve years of age; and the conviction was afterwards quashed, on the ground that the judge had refused to leave the question of consent to the jury. [WILLES, J. Is there any contemporary Irish report of that case? I can hardly believe that it is correctly reported.(5)] (1) Leigh and Cave, C. C. 632; 34 L. J. (M. C.) 192. (2) 1 Den. C. C. 377; 18 L. J. (M. C.) 88. (3) 3 Cox Crim. Cas. 543. (4) 7 Cox Crim. Cas. 145. (5) It appears, from a note at the end of the case, that the reporter was not present in court during the argu ment. v. BEALE. 1865 At any rate, the judge in this case misdirected the jury, in tellTHE QUEEN ing them that any assault at all, whether committed with or without such modified consent as he speaks of, was material to the offence charged against the prisoner. v. BEALE. [POLLOCK, C.B. That point is quite beside the real question, which is whether the prisoner was committing the offence of attempting to have carnal knowledge of the girl. If he was, her consent was a matter of indifference.] F. H. Lewis appeared in support of the conviction, but was not called upon to argue. POLLOCK, C.B. The learned judge who tried the case seems to have thought that a full and ample consent on the part of the girl would have prevented the completion of the crime, and that a consent of a different character would not have had that effect. That opinion, in reality, was utterly unfounded. Consent was altogether unimportant. The jury said the prisoner was guilty, but found that there had been a qualified consent on the part of the girl; and, if the nature of the consent had been material, it might have been necessary to analyze the facts of the case. Those facts, however, shew an attempt to commit a crime, where consent was immaterial. Of course, if the indictment had been merely for an indecent assault, the question of consent would have become material. Nov. 11. Conviction affirmed. THE QUEEN v. HENRY REDMAN. Threat to accuse of an infamous crime-Intent-24 & 25 Vict. c. 96, s. 47. The prisoner threatened A.'s father that he would accuse A. of having committed an abominable offence upon a mare, for the purpose of putting off the mare and forcing the father, under terror of the threatened charge, to buy and pay for her at the prisoner's price :— Held, that the prisoner was guilty of threatening to accuse, with intent to extort money, within the meaning of the 24 & 25 Vict. c. 96, s. 47. THE following case was stated by Willes, J.: Henry Redman was tried before me at the last Wilts Assizes, under the 24 & 25 Vict. c. 96, s. 47, (1) for threatening a boy's 1865 father to accuse the boy of an abominable offence upon a mare, THE QUEEN with intent to extort money from the father. The prisoner charged the boy with an abominable offence upon a mare in the prisoner's possession. Before giving information against the boy (which he afterwards did, when the charge was dismissed as groundless), the prisoner went to the boy's father, and stated to him that the offence had been committed, and that, if the father did not buy the mare of him, and pay him 37. 10s. for her, he would accuse the boy. The father refused, saying that the prisoner was a liar, and wanted to get rid of the mare. The prisoner pursued the same course to the boy's master, who treated his attempt in the same way. No evidence was given as to the value of the mare; but there was the above evidence of the prisoner's desire to get rid of her. The boy was called, and denied the charge, which was a most improbable one. I told the jury to find the prisoner Guilty, if he threatened the father to make the charge for the purpose of putting off the mare and forcing the father, under terror of the threatened charge, to buy and pay for her at the prisoner's price. The jury found the prisoner Guilty; and I directed that he should remain in custody, until the opinion of the Court for Crown Cases Reserved was obtained upon the question whether the case was within the statute. This case was considered on the 11th of November, 1865, by POLLOCK, C.B., WILLES, J., PIGOTT, B., and SHEE and MONTAGUE SMITH, JJ. No counsel appeared for the prisoner. C. S. Bowen appeared for the Crown, but was not called upon to argue. (1) That section enacts that "Whosoever shall accuse, or threaten to accuse, either the person to whom such accusation or threat shall be made, or any other person, of any of the infamous or other crimes lastly herein before mentioned, with the view or intent in VOL. I. D any of the cases last aforesaid to extort 4 v. REDMAN. |