to defend others is further considered in treating of homicide.114" 216. Effect of Consent in General. An act does not constitute an assault, or an assault and battery, if the person on or against whom it is committed freely consents to the act, provided he or she is capable of consenting, and the act is one to which consent may be given, and the consent is not obtained by fraud.115 Thus, it has been held that a person who whips another with a switch, at his request or with his consent, is not guilty of an assault and battery.116 The same is true of injuries received in friendly boxing matches, foot ball, and other lawful games and sports.117 An attempt to procure an abortion by the use of 114 Post, § 228. Strangers may interfere to prevent an assault or an unlawful arrest or detention. Reg. v. Tooley, 2 Ld. Raym. 1296. 115 Reg. v. Wollaston, 12 Cox, C. C. 180; Reg. v. Clarence, 16 Cox, C. C. 511, 22 Q. B. Div. 23, Beale's Cas. 438; State v. Beck, 1 Hill (S. C.) 363, 26 Am. Dec. 190; Champer v. State, 14 Ohio St. 437; Duncan v. Com., 6 Dana (Ky.) 295. 116 State v. Beck, 1 Hill (S. C.) 363, 26 Am. Dec. 190. 117 Fost. C. L. 260; Reg. v. Bradshaw, 14 Cox, instruments or drugs is not an assault upon the woman, if she consents.118 217. Fighting, and Breaches of the Peace. By the decided weight of authority, a person cannot consent to a breach of the peace or to a beating which may result in serious injury. And it has been held, therefore, both in England and in this country, that if persons engage in a fight by agreement, whether a prize fight or not, their consent does not prevent each from being guilty of an assault and battery upon the other.1 "The principle as to consent," said Stephen J., in an English case, "seems to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no 119 State v. Burnham, 56 C. C. 83, Beale's Cas. 146; Vt. 445, 48 Am. Rep. 801; Mass. 350, 20 Am. Rep. 328, Beale's Cas. 148. 118 State v. Cooper, 22 N. J. Law, 52, 51 Am. Dec. 248. Reg. v. Lewis, 119 Mass. 350, Adams v. WagWilley v. Car 119 Reg. v. Coney, 8 Q. B. Div. 5.4; 1 Car. & K. 419; Com. v. Collberg, 20 Am. Rep. 328, Beale's Cas. 148; goner, 33 Ind. 531, 5 Am. Rep. 230; penter, 64 Vt. 212; State v. Newland, 27 Kan. 764; King v. State, 4 Tex. App. 54, 30 Am. Rep. 160. defense to the person who inflicts the injury. if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public, as well as to the person injured. The injuries given and received in prize fights are injurious to the public, both because it is against the public interest that the lives and health of the combatants should be endangered by blows, and because prize fights are disorderly exhibitions, mischievous on many grounds. Therefore, the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults."120 While this view is now well established, it does not seem sound, and there is at least one decision to the contrary.121 The proper view would seem to be that the parties in such a case are not guilty of assault and battery, but merely of a breach of the peace, if of any offense, and the indictment should be for the breach of the peace.122 120 Reg. v. Coney, 8 Q. B. Div. 534. 121 Champer v. State, 14 Ohio St. 437. And see the dictum in State v. Beck, 1 Hill (S. C.) 363, 26 Am. Dec. 190. 122 See Rex v. Billingham, 2 Car. & P. 234; State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801. i 218. Submission through Fear. Consent must be distinguished from mere submission. Submission to an act through fear is not consent. Thus, even if it is not an assault to attempt to have connection with a child of tender years with her consent, it is otherwise if she submits under the influence of fear, or because she feels herself in the of the man. power 123 219. Persons Incapable of Consenting. In England it has been held that an attempt to have connection with a girl of tender years with her consent is not an assault, even though she may be too young to understand the nature of the act, and though her consent would be no defense on an indictment for rape.124 In this country, however, the decisions are to the contrary. A child under ten years of age, or in some states 123 Reg. v. Woodhurst, 12 Cox, C. C. 443; Reg. v. Day, 9 Car. & P. 722. 124 Reg. v. Read, 2 Car. & K. 957; 1 Den. C. C. 377 (where the child was under nine); Reg. v. Woodhurst, 12 Cox, C. C. 443; Reg. v. Day, 9 Car. & P. 722; Reg. v. Martin, 9 Car. & P. 213; Reg. v. Johnson, Leigh & C. 632, 10 Cox, C. C. 114. under the age of twelve, or even more, is not capable of consenting to sexual intercourse, and consent is no defense on a charge of assault with intent to rape.125 It has even been held that, where a statute punishes as rape carnal knowledge of a female under the age of sixteen or eighteen with her consent, consent is no defense to a charge of assault with intent to rape." 126 To attempt to have intercourse with a woman who is asleep, or who is insensible through drunkenness or drugs, is an assault.127 125 People v. McDonald, 9 Mich. 150; Com. v. Nickerson, 5 Allen (Mass.) 518; People v. Stewart, 85 Cal. 174; State v. Miller, 42 La. Ann. 1186, 21 Am. St. Rep. 418; Lawrence v. Com., 30 Grat. (Va.) 845. In Com. v. Nickerson, 5 Allen (Mass.) 518, it was held that a child of nine years was not competent to consent to a forcible transfer of him to a stranger from the custody of his mother, and that such consent was no defense on a prosecution for assault and battery upon him in making the transfer. 126 State v. Rollins, 8 N. H. 550; Hadden v. People, 25 N. Y. 373; Murphy v. State, 120 Ind. 115; People v. Goulette, 82 Mich. 36. 127 Reg. v. Camplin, 1 Den. C. C. 89, 1 Cox, C. C. 220. See post, § 295. |