Joinder of counts. It is the practice to join a count for an assault with an intent to commit the rape with a count for rape itself, b and a general verdict of guilty carries the greater of fence. 61 "Assault."-The allegation of "assault" is said not to be necessary; c but without it there cannot be a conviction on such count for the assault. Merger. Whether there is a merger of the assault, when the felony is proved, has been already considered. d Age. This need not be averred, either in respect to the woman, e nor as to the man, so as to exclude impuberty.f But in the statutory offence of abusing infant children, age is an essential averment. It is otherwise, however, under the Ohio statute, as to a "female child," h and when improperly used, the description may be rejected as surplusage. h1 § 1154. DUPLICITY. A count charging that the prisoner, a slave," with force and arms, in the county aforesaid, in and upon one A. (then and there being a free white woman) feloniously did make an assault, and her, the said A., then and there feloniously did attempt to ravish and carnally know, by force and against her will, and in said attempt did forcibly choke and throw down the said A.," is not bad for duplicity or uncertainty. The last allegation is but a minute description of the manner of the assault, and may be rejected as surplusage. i Technical terms. The words, " ravish," and "forcibly and against the will,” k have been held necessary in the indictment; b Harman v. Com. 12 Serg. & Rawle, 69; Burk v. State, 2 Har. & John. 426; State v. Coleman, 5 Porter, 32; State v. Montague, 2 McCord, 257; State v. Gaffney, Rice, 431; Stephen v. State, 11 Georgia, 227; People v. Taylor, 36 Cal. 253. See ante, § 385, 419. People v. Ah Yek, 29 Cal. 575; Wh. g Wh. Prec. 187, 190; R. v. Martin, 9 C & P. 215. h O'Meara v. State, 17 Ohio St. 515. h1 Mobley v. State, 46 Missis. 501. i Green v. State, 23 Missis. (1 b1 Cook v. State, 4 Zabr. (N. J.) Cush.) 509. 845. Ante, § 418. j Gougleman v. People, 3 Parker c R. v. Allen, 2 Moody, 179; O'Con- C. R. (N. Y.) 15. nell v. State, 6 Minn. 279. d See ante, § 564. k State v. Jim, 1 Devereux, 142. Ante, § 401. Under the laws of Maine, e Wh. Prec. 186; State v. Storkey, the acts necessary to constitute the 63 N. C. 7. crime of rape must be done "by force," ƒ Com. v. Scannal, 11 Cush. 547; and these words, or something equally though in Pennsylvania it was held that the omission of the latter words was not fatal when it was charged that the defendant "feloniously did ravish and carnally know her; "7 and it would seem that " ravish " implies force. m Unlawfully may be dispensed with.n Sex need not be expressly eo nomine averred. Thus, where an indictment for a rape charged that the defendant, "with force and arms, &c., in and upon Mary Ann Taylor, in the peace of the state, &c., violently and feloniously did make an assault, and her, the said Mary Ann Taylor, then and there violently and against her will, feloniously did ravish and carnally know," the court can and must see with certainty that Mary Ann Taylor was a female. o An indictment for rape need not allege that the female was not the wife of the defendant. p Without such averment, however, there can be no conviction under the count for adultery or fornication. q Conviction of minor offence. How far the defendant may be convicted of minor offences in a count for rape has been already considered. & VI. ASSAULT WITH INTENT TO RAVISH. [For the general law as to "Attempts," see vol. III. § 2686, 2712.] (a.) Offence generally. § 1155. Where the evidence was that the prisoner decoyed a female child into a building for the purpose of ravishing her, and was there detected while standing within a few feet of her in a state of indecent exposure, it was held, that though there was no evidence of his having actually touched her, he was properly convicted of an assault with intent to ravish. t § 1156. In a case which has been already referred to, the prosecutrix stated that the defendant, her medical man, being in her bedroom, directed her to lean forward on a bed, that he might apply an injection; she did so, and the injection having been applied, she found the defendant was proceeding to have a criminal connection with her, upon which she instantly raised herself up, and ran out of the room. She stated that the defendant had penetrated her person a little. It was held, that if it had appeared that the defendant had intended to have had a criminal connection with the prosecutrix by force, the complete offence of rape would, upon this evidence, have been proved; but that the thus getting possession of the person of the woman by surprise was not an assault with intent to commit a rape, but was an assault. u And that such an act was an assault, to which consent given in ignorance was no defence, was subsequently agreed to by all the judges. v It should be observed, however, that there is a distinction between an assault to commit a rape, and an assault with an intent to have an improper connection. There may be cases in which the jury may not be satisfied that it was intended to consummate the offence by force, but may hold that the object was merely to tempt the prosecutrix to consent. In this case, if there be an assault proved, it is proper to indict for the assault with intent to have an improper connection. w In any view, if there be no intent to use force, the averment of intent to ravish cannot be sustained. x The intent to use force, however, may be inferred from the circumstances. Thus in a case where, when the prosecutrix awoke, she found the defendant in bed with her, holding her by the wrist, and he escaped when she called on the family for t Hays v. People, 1 Hill, 351. u R. v. Stanton, 1 Car. & Kir. 415. v R. v. Case, supra, § 1145. See post, § 1156 b. w R. v. Stanton, 1 C. & K. 415; R. r. Saunders, 8 C. & P. 265; R. v. Williams, 8 C. & P. 286; R. v. Case, 1 Den. C. C. 580; 4 Cox C. C. 220; 1 x Com. v. Merrill, 14 Gray, 414; help; it was held that he might be convicted of an assault with intent to commit a rape. y An indictment charging an assault and an "attempt to ravish," &c., is insufficient to support a charge of an assault with intent to commit rape. z A prisoner may be convicted of an assault with intent to commit a rape, without the testimony of the party injured. a According to the English practice, after an acquittal upon an indictment for rape, and for an assault with intent to commit a rape, the prisoner may be indicted for a common assault, upon which the prosecutrix can only in chief be asked so much as to elicit what would amount to a common assault; but the prisoner's counsel may, on cross-examination, enter into the original charge. b (b.) How far Assent will bar such a Prosecution. § 1156 6. The question of constructive estoppel by consent of the party injured, has been already discussed in its general bearings, c and it will be sufficient now to state the conclusions already reached, blended with the decisions of the courts on the particular questions now before us. Volenti non fit injuria is the maxim generally applicable; but in this relation with qualifications which will now be detailed. (a.) In rape itself, of which an essential element is the want of consent of the woman, proof of consent necessarily, as has been seen, destroys one of the conditions of the offence. Hence there can be no assault with intent to commit a rape in cases where consent, by a person capable of assenting, is given. d (b.) In the statutory crime of sexual abuse of a child under ten years, without consent is not an essential element; and hence consent is no defence to an indictment for this offence. e And so at common law, to rape of a child of such tender years as to be incapable of assenting, consent, or even assistance, is no defence.ƒ y Carter v. State, 35 Ga. 263. z State v. Ross, 25 Mo. (4 Jones) 426. a People v. Bates, 1 Parker C. R. (N. Y.) 27. Ante, § 1139. 6 R. v. Dungey, 4 F. & F. 99Willes. Vol. i. § 751 b. d R. v. Martin, 9 C. & P. 213; 2 Moody C. C. 123; R. v. Johnson, L. & C. 632; 10 Cox C. C. 114. e R. v. Beale, 10 Cox C. C. 157; 1 L. R. C. C. 10; R. v. Connolly, 26 Up. Can. Q. B. 323. f Hays v. People, 1 Hill N. Y. 351 ; Stephen v. State, 11 Ga. 225; O'Meara (c.) An indictment for assault with intent to ravish, may be sustained when the object of the assault was incapable of assent. And this applies to cases where such incapacity arose from extreme infancy, g or from idiocy or mania, h or from intoxication, whether by alcoholic liquor or by opiates. i With young girls it is for the jury to consider whether the supposed assent was not the result of fear, or, in cases of assault, of confusion. j (d.) It seems, also, that consent is no defence if the woman does not know that what is proposed to her is the sexual act; as in the case of the patient who supposed that the act was one simply of medical treatment. In such cases, there can be a conviction for the assault; but there can be no conviction of the assault with intent to ravish, unless the jury believe that the intent was to use force if fraud failed. 7 (e.) If the defendant intended to use force to the end, and the woman, who for a time resisted, ultimately assented, the defendant may be convicted of an assault with intent to commit a rape. m (f.) And so, also, where the defendant, before consummating his purpose, was driven or frightened off. n v. State, 17 Ohio St. 515; but see as qualifying this, R. v. Read, 1 Den. C. C. 377; 3 Cox C. C. 266; R. v. Cockburn, 3 Cox C. C. 543; People v. McDonald, 9 Mich. 150; and R. v. Martin, R. v. Johnson, supra, as to children not positively incapable of assent. g Ante, § 1143, and see particularly R. v. Lock, ante, § 1141, note z. h Ante, § 1143. See R. v. Connolly 26 Up. Can. Q. B. 323, where Hagarty, J., argues that mere animal consent in such case defeats prosecution. i Ante, § 1146. j R. v. Day, 9 C. & P. 722; R. v. McGavaran, 6 Cox C. C. 64; R. v. Fick, 16 Up. Can. C. P. 379. 186 k R. v. Case, supra, § 1145; R. v. Stanton, supra, § 1143. 7 Ibid.; Pleasant v. State, 8 Eng. (3 Ark.) 360; Clark v. State, 30 Texas, 448; Walter v. People, 50 Barbour, 144; Com. v. Fields, 4 Leigh, 648. As to fraud, see R. v. Bennett, 4 F. & F. 1105. m People v. Bransby, 5 Tiffany, 525; State v. Cross, 12 Iowa, 66; R. v. Hallett, 9 C. & P. 748. n See post, § 2699. State v. Elick, 7 Jones N. C. 68; Lewis v. State, 35 Ala. 380. See R. v. Wright, 4 F. & F. 967. |