CASES DETERMINED BY THE COURT FOR CROWN CASES RESERVED IN MICHAELMAS TERM, XXXV VICTORIA. 1871 Nov. 18. THE QUEEN v. HOLMES AND FURNESS. Indecent Assault-Attempt at Rape-Cross-examination of Prosecutrix— The prosecutrix in an indictment for an indecent assault, which on the facts alleged amounted, in substance, to an attempt at rape, was asked in cross-examination whether she had not previously had connection with a man other than the prisoner, and denied it : Held, that she could not be contradicted. CASE stated by the Chairman of Quarter Sessions for the county of Surrey. At the general quarter sessions, holden at Kingston-uponThames, for the county of Surrey, on the 17th of October, 1871, Henry Holmes and Joseph Frederick Furness were tried upon an indictment charging them with indecently assaulting one Sarah Palmer. It appeared from the evidence taken at the trial, the whole of which was set out, that the indecent assault charged amounted to an attempt at rape; and that for the defence consent was alleged. The prosecutrix, in her cross-examination, was asked by the prisoner's counsel if she had had connection with Robert Sharp, and she denied it. The prisoners' counsel called Robert Sharp, and asked him if the prosecutrix had ever had connection with him, but the counsel 1871 v. for the prosecution objected to the question on the authority of Reg. v. Cockroft (1), and the Court refused to allow the question THE QUEEN to be answered, but reserved the point, whether such answer ought to have been allowed to be given, for the decision of the Court for Crown Cases Reserved. The jury found both prisoners guilty. Straight, for the prisoners. The issue in this case being substantially one of consent or no consent, the evidence tendered was strictly relevant to the issue, as having a material bearing upon the probability of the prosecutrix' consent. Rex v. Hodgson (2), which may be relied on upon the other side, is not in point. In that case it was held that the prosecutrix was not bound to answer a question as to previous connection with another man; a rule which may be doubted in the present day. And, inasmuch as the question was not answered by the proscutrix, the evidence on the other side was not, as here, called in contradiction. Reg. v. Robins (3) is an express decision by Coleridge, J., with the concurrence of Erskine, J., that the evidence is admissible. In Rex v. Martin (4), the same rule was laid down as to evidence of previous connection with the prisoner. And there is no reason for any distinction between the two cases. Rex v. Barker (5), and Reg. v. Clay (6), shew that evidence of previous immorality is material to the issue. He also referred to Reg. v. Arnall (7), and Reg. v. Eyre. (8) Oppenheim for the prosecution. The evidence was properly excluded. The question put to the prisoner was not relevant to the issue, it only went to credit. Upon principle, therefore, her answer is binding. And Rex v. Hodgson (2) is a decision of all the judges against the admission of the evidence. Rex v. Clarke (9) is to the same effect. The ruling in Reg. v. Robins (3) was wrong. And in Reg. v. Cockroft (1), Martin, B., and Willes, J., refused to follow it, and laid down the contrary rule. He also referred to a ruling of Keating, J., in a case not reported, to the same effect. (1) 11 Cox, Cr. C. 410. (2) R. & R. 211. (3) 2 Moo. & R. 512. (6) 5 Cox, Cr. C. 146. (8) 2 F. & F. 579. (9) 2 Stark. N. P. C. 241. HOLMES. 1871 v. HOLMES. KELLY, C.B. The question raised in this case is one of very THE QUEEN great importance; and if we had entertained any substantial doubt upon it, we should have thought it right to submit it for the opinion of all the judges. But when we look, first, at the principles applicable to the case, and, secondly, at authority, we think it is impossible to doubt what the decision ought to be. The question is, whether on an indictment for rape, or for attempt at rape, or for an indecent assault, amounting in substance to an attempt at rape, if the prosecutrix is asked in cross-examination whether she has had connection with another person not the prisoner, and denies it, evidence can be called to contradict her. We are all of opinion that it cannot. In the first place, the general rule of evidence is that if a question be put in crossexamination as to a collateral point, the answer must be taken for better or for worse. And the reason is obvious. If such evidence as that here proposed were admitted, the whole history of the prosecutrix's life might be gone into; if a charge might be made as to one man, it might be made as to fifty, and that without notice to the prosecutrix. It would not only involve a multitude of collateral issues, but an inquiry into matters as to which the prosecutrix might be wholly unprepared, and so work great injustice. Upon principle, therefore, we must hold that the answer is binding. When we look at the authorities the case is still clearer. The first case on the subject is Rex v. Hodgson. (1) That case was heard first before eight of the judges, and afterwards before the whole number. It was an actual decision that the prosecutrix on a charge of rape was not bound to answer such a question as that here put. That seems, as a matter of principle, to involve that, if the question had been answered, the answer would have been binding. But, further, the second objection taken in that case seems to raise the very point; and upon that the judges lay down the law distinctly, in accordance with the view which we take. That case is therefore an actual decision involving in principle the point now in question, and a dictum, at the least, by some of the most learned judges who ever sat, upon the very point. Reg. v. Cockroft (2) was an indictment for (1) R. & R. 211. (2) 11 Cox, Cr. C. 410. 1871 V. HOLMES. rape, and was tried first before Martin, B., and again before Willes, J., and both of those learned judges held that such evidence THE QUEEN as that here tendered was inadmissible. So far all the decisions entirely support that view which we think to follow clearly from the settled principles of the law of evidence. We are asked to abandon that view upon the authority of Reg. v. Robins. (1) That was no doubt a decision of Coleridge, J., after consulting Erskine, J., upon the very point now in dispute. But we cannot follow that ruling in opposition to the whole current of authority upon the question. In Rex v. Barker (2) the question was as to evidence shewing the prosecutrix to be a common prostitute; and such evidence has long been held material. In Rex v. Martin (3) the evidence was as to the prosecutrix having previously had connection with the prisoner. And such evidence is undoubtedly admissible, for it has a direct bearing upon the question of consent. These are really all the cases upon the subject. But from Rex v. Clarke (4) it may be collected that Holroyd, J., held the same view in the case of an indictment for an attempt at rape. We have, therefore, a deliberate judgment of the twelve judges, the decisions of Martin, B., and Willes, J., and the opinion of Holroyd, J., against the ruling of Coleridge, J. BYLES, J. I think it quite clear that the prosecutrix in a charge of rape, or attempt at rape, cannot be contradicted by persons who swear that they have had connection with her, for a rape may be committed upon a prostitute. Then we have the authority of all the judges in Rex v. Hodgson (5); and of Martin, B., and Willes, J., in Reg v. Cockroft. (6) A ruling of Keating, J., to the same effect has been referred to. And I have had an opportunity of speaking both to him and to Willes, J., who are still of the same opinion. PIGOTT, B. I think the evidence proposed to be given is not relevant to the issue; and its admission might lead to great injustice. (1) 2 Moo. & R. 512. (2) 3 C. & P. 589. (3) 6 C. & P. 562. (4) 2 Stark. N. P. C. 241. (5) R. & R. 211. (6) 11 Cox, Cr. C. 410. 1871 LUSH, J. I was for a time of a different opinion. But I am THE QUEEN now quite convinced that the evidence in question was too remote HANNEN, J. I think no distinction can be drawn between a case of rape and a case of indecent assault, when the offence charged is in substance an attempt at rape. Then Rex v. Hodgson (1) is a decision that such evidence as this cannot be given as substantial evidence in the cause, that is, cannot be regarded as relevant to the issue, but only as going to the credit of the witness. The witness's answer is therefore binding. And the reason is that the prosecutrix cannot come prepared to try all the issues which would be thus raised. The case is clear in principle, and it is also governed by authority. Conviction affirmed. Attorneys for prosecution: J. C. & W. Rogers. Nov. 11. THE QUEEN v. MANNING AND ROGERS. Malicious Injury to Property-Arson-24 & 25 Vict. c. 97, s. 6—Building— A building, in 24 & 25 Vict. 97, s. 6, is not necessarily a finished structure. An unfinished house, of which the walls were built and finished, the roof on and finished, a considerable part of the flooring laid, and the internal walls and ceilings prepared ready for plastering, held, to be a building within the meaning of the section. CASE stated by Martin, B. The prisoners were tried upon an indictment, which charged that they "feloniously, unlawfully, and maliciously did set fire to a certain building of one John Rhodes, there situate, against the form of the statute in such case made and provided." It was framed upon 24 & 25 Vict. c. 97, s. 6. (2) The prisoners (1) R. & R. 211. (2) Sect. 6 of 24 & 25 Vict. c. 97, enacts that," Whosoever shall unlawfully and maliciously set fire to any building, other than such as are in this Act before mentioned, shall be guilty of felony. . . . |