for the other, the indictments in the two cases are exactly similar.

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*Then why are the very large words of the statute ("dealt with, inquired of, tried, determined, and punished") to be so confined as to commence at the finding of the indictment? Some prior proceeding must be contemplated, otherwise the examination by a magistrate of such a charge, especially if afterwards dismissed, would be illegal; and if this objection be good, the escape of a prisoner, or even his being admitted to bail by the magistrates, would oust the county of its jurisdiction, as he would not be called upon to surrender till after the finding of the indict

ment.

COCKBURN in reply. I contend that in case of an escape the day before trial, it would take away the jurisdiction, and that being out on bail is equivalent to being in custody. By the words of the act, all the facts intended to be proved must be stated in the indictment, and it is not sufficient that they appear in the caption of it. The decision of the case was adjourned, and at a subsequent meeting

PARKE, B., ALDERSON, B., and MAULE, J., thought the indictment sufficient; LORD DENMAN, C. J., TINDAL, C. J., LITTLEDALE, J., BOSANQUET, J., PATTESON, J., GURNEY, B., COLERIDGE, J., COLTMAN, J., held the indictment bad, per se; but all the Judges, except LORD DENMAN, C. J. held the objection cured by the caption, plea, &c., and the conviction good on the whole record.

REGINA v. THOMAS HUGHES.

Penetration short of rupturing the hymen is sufficient to constitute the crime of rape.

THE prisoner was tried before Mr. Justice COLERIDGE at the Spring assizes, at Stafford, in the year 1841, for a rape on Mary Ann Wesley, a girl *between [191] eleven and twelve years old. The offence was very clearly proved, subject to the question on which the learned Judge desired the opinion of the Judges. A surgeon deposed to the appearance in and about the child's private parts, and stated his belief that penetration had taken place, but that the hymen, which in her was placed at the usual distance from the opening, had not been ruptured.

The Jury found the prisoner guilty, but by desire of the learned Judge found also specially, that penetration had not proceeded to the rupture of the hymen.

Whether under such circumstances the crime could be considered as complete appeared to have been the subject of conflicting decisions, and the learned Judge desired upon it to receive the advice of the Judges.

This case being called on at a meeting of all the Judges, except BOSANQUET, J., GURNEY, B., and MAULE, J., in Easter term, 1841,

PRICE appeared to argue for the prisoner, when COLERIDGE, J., said, Can this case be argued? I reserved it out of respect to a reported dictum of Mr.

BARON GURNEY, which I understand he now withdraws. The twelve Judges have already decided it. (a) It must be considered as decided already. The Judges present appeared to be unanimously of that opinion, and Price withdrew, and the conviction was affirmed.

Evidence of the least penetration, justifies a conviction for rape. The State v. Le Blanc, 1 Const. Rep. (S. Car.) 354.

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*REGNIA v. ROBERT HENDERSON and
JEREMIAH BARLOW.

An indictment for obtaining money, &c., under false pretences, must allege that the defendant knew the falsehood. “Falsely and fraudulently” is not enough. Semble, an acquittal for larceny of goods is no bar to an indictment for obtaining the goods under false pretences.

Ar the sessions of General Gaol delivery of our Lady the Queen, holden at the Castle of York in and for the county of York, on the 6th day of March, in the fourth year of the reign of our said Lady the Queen, before Sir W. HENRY MAULE, Knight, one of the Justices, &c., and Sir ROBERT MONSEY ROLFE, Knight, one of the Barons, &c.

Indictment, Yorkshire to Wit:-The jurors for our Lady the Queen, upon their oath present, that heretofore, to wit on the 1st day of December, in the year of our Lord 1840, at the parish of Rotherham, in the county aforesaid, one Francis Pawson was possessed of

(a) R. v. Russen, 1 East, P. C. 438.

a certain mare, and that Robert Henderson, late of the Castle, York, laborer, was then and there possessed of a certain horse, and that the said Robert Henderson and Jeremiah Barlow, late of York Castle, laborer, on the day and the year aforesaid, at the parish aforesaid, in the county aforesaid, unlawfully and fraudulenly did falsely pretend to the said Francis Pawson that he the said Jeremiah Barlow was then and there possessed of a certain sum of money, to wit, the sum of 127., and that if the said Francis Pawson would exchange the said mare of which he was so then and there possessed as aforesaid for the said horse, of which he the said Robert Henderson was so then and there possessed as aforesaid, he the said Jeremiah Barlow was then and there willing and ready to purchase the said last-mentioned horse of him the said Francis Pawson, and then and there to pay to the said Francis Pawson *the [*193] sum of 127., and that the said Robert Henderson and Jeremiah Barlow by the several false pretences aforesaid, did unlawfuly and fraudulently then and there obtain from the said Francis Pawson a certain chattel of him the said Francis Pawson, to wit, the said mare, with intent to defraud the said Francis Pawson of the same, whereas in truth and in fact the said Jeremiah Barlow was not then and there possessed of the said sum of 127., and was not then and there ready and willing to purchase the said horse of him the said Francis Pawson, and was not then and there ready and

willing to pay to the said Francis Pawson the said sum of 127., against the form of the statute in such case made and provided, and against the peace of our said Lady the Queen, her crown and dignity.

Plea. And the said Robert Henderson and Jeremiah Barlow in their own proper persons, come into Court, and having heard the said indictment read, demand judgment of the said indictment, and all and every part thereof, they having heretofore, by a jury of the country in due form of law, been acquitted and discharged of the premises in the said indictment above specified, and charged on them, and for plea to the said indictment, the said Robert Henderson and Jeremiah Barlow say that our said Lady the Queen ought not further to prosecute them the said Robert Henderson and Jeremiah Barlow by reason of the premises in the said indictment mentioned, because they say that heretofore, to wit at this now present general gaol delivery of our Lady the Queen of her county of York, holden at the Castle of York in and for the said county, they the said Robert Henderson and Jeremiah Barlow stood indicted by the names and description of Robert Henderson late of *Wakefield in the

[*194] West Riding of the County of York, laborer, and Jeremiah Barlow late of Rotherham in the Riding aforesaid, laborer, for that they the said Robert Henderson and Jeremiah Barlow, on the 1st day of December, in the fourth year of the reign of our sovereign Lady Victoria, by the grace of God of the United Kingdom of