Provided that such acts as are reasonably necessary for the common intercourse of life, are not assaults or batteries if they are done for the purpose of such intercourse only and with no greater force than the occasion requires. No mere words can in any case amount to an assault.

Illustrations.

The following are cases of assault and battery

(1.) A cuts B's dress whilst B is wearing it, but without touching or intending to touch any part of B's person.

(2.) 2 A sets a dog at B, which bites B.

(3.) 3 A man professing to act as a medical adviser fraudulently induces a girl to allow him to undress her, by falsely alleging that it is necessary for medical reasons to do so.

(4.) A touches B, a boy of eight, in a grossly indecent manner, B acquiescing in ignorance of the nature of the act.

(5.) 5 A induces B to permit him to have connection with her by pretending to be her husband. (This is now also rape, by statute 48 & 49 Vict. c. 69, s. 4.)

The following are cases of assault without battery :— (6.) A strikes at B with a stick without hitting him.

(7.) 7 A aims a pistol at B which A knows is not loaded, but which B believes to be loaded.

In the following cases no assault or battery is committed :— (8.) A lays his hand on B to attract his attention.

(9.) A, falling down, catches hold of B to save himself.

(10.) A crowd of people, going into a theatre, push and are pushed against each other.

1 R. v. Day, 1845, 1 Cox, C. C. 207.

2 1 Russ. Cr. 958, gives several cases of this sort.

3 R. v. Rosinski, 1 Russ. Cr. 959; and see R. v. Case, 1850, 1 Den. C. C. 580.

4 R. v. Lock, 1872, 2 C. C. R. 10, and see R. v. Barratt, 1873, 2 C. C. R. 81.

5 R. v. Williams, 1838, 8 C. & P. 286. The prisoner was sentenced to three years imprisonment with hard labour, no doubt on the ground that the assault was indecent. The maximum punishment would now be two years hard labour. See Article 267 (d).

61 Hawk. P. C. 110.

7 R. v. St. George, 1840, 9 C. & P. 483.

This case has been overruled
Ante,

(R. v. Duckworth, 1892, 2 Q. B. 83), but not upon this point. p. 192, n. 7.

ARTICLE 263.

PUNISHMENT OF ASSAULTS WITH INTENT TO COMMIT SODOMY.

1 Every one is guilty of a misdemeanor, and is liable upon conviction thereof to ten years penal servitude, who is guilty of any assault with intent to commit sodomy or of any indecent assault upon any male person.

ARTICLE 264.

ASSAULTS ON PERSONS PROTECTING WRECK.

Every one is guilty of a misdemeanor, and is liable upon conviction thereof to seven years penal servitude, who assaults and strikes or wounds any magistrate, officer, or other person lawfully authorized, in or on account of the execution of his duty in or concerning the preservation of any vessel in distress, or of any vessel or goods or effects wrecked, stranded, or cast on shore, or lying under water.

ARTICLE 265.

ASSAULTS CAUSING ACTUAL BODILY HARM.

3 Every one commits a misdemeanor, and is liable upon conviction thereof to five years penal servitude, who commits an assault occasioning actual bodily harm.

4

ARTICLE 266.

RESISTING LAWFUL ARREST.

Every one is guilty of a misdemeanor, and is liable to imprisonment with hard labour for three years, who, being

1 24 & 25 Vict. c. 100, s. 62. The last words of this enactment would cover the case of an indecent assault by a woman on a man; but this can hardly have been intended. Consent is no defence when the boy is under thirteen. See 43 & 44 Vict. c. 45, referred to in Art. 263.

2 24 & 25 Vict. c. 100, s. 37.

3 Ibid. s. 47.

4 14 & 15 Vict. c. 19, s. 12. By s. 11 of this Act any person whatsoever may apprehend any person found committing any indictable offence

liable to be apprehended under the provisions of the Prevention of Offences Act 1851, assaults or offers violence to any person by law authorized to apprehend or detain him or to any person acting in his aid and assistance.

ARTICLE 267.

ASSAULTS PUNISHABLE WITH TWO YEARS IMPRISONMENT.

Every person commits a misdemeanor, and is liable upon conviction to two years imprisonment and hard labour,

(a.) 1 who assaults any person with intent to commit a felony or to resist or prevent the lawful apprehension or detainer of himself or of any other person for any offence;

(b.) or who assaults, resists, or wilfully obstructs any peace officer in the due execution of his duty, or any person acting in aid of such officer;

(c.) or who assaults any officer of a workhouse or relieving officer in the due execution of his duty, or any person acting in aid of such officer;

3

(d.) or who indecently assaults any female;

4

(e.) or who by threats or force obstructs, or prevents, or endeavours to obstruct or prevent any clergyman or other minister in or from celebrating divine service or otherwise officiating in any church, chapel, meeting-house, or other place of divine worship, or in or from the performance of his duty in the lawful burial of the dead in any churchyard or other burial place;

(f.) 5 or who strikes or offers any violence to, or arrests upon

in the night, and may convey him or deliver him to some constable or other peace officer to be conveyed as soon as may be before a justice.

1 24 & 25 Vict. c. 100, s. 38; s. 41 was repealed by 34 & 35 Vict. c. 32. This applies to assaults on special constables appointed under 1 & 2 Will. 4 c. 41, see s. 11, and to county constables, see 2 & 3 Vict. c. 93, s. 8. As to assaults on constables generally punishable summarily, see 34 & 35 Vict. c. 112, s. 12 and 48 & 49 Vict. c. 75, s. 2, Oke's Synopsis, p. 206. 2 13 & 14 Vict. c. 101, s. 9.

3 24 & 25 Vict. c. 100, s. 52. In cases of indecent assault consent is no defence if the girl is under thirteen, 43 & 44 Vict. c. 45. See Art. 262. 4 24 & 25 Vict. c. 100, s. 36.

5 Ibid.

or under the pretence of executing any civil process, any clergyman or other minister engaged in or to the knowledge of the offender about to engage in any of the rites or duties mentioned in the last clause, or to the knowledge of the offender going to perform the same, or returning from the performance thereof.

ARTICLE 268.

PUNISHMENT OF COMMON ASSAULT ON INDICTMENT.

1 Every person who commits a common assault is guilty of a misdemeanor, and is liable on conviction thereof to one year's imprisonment and hard labour.

The punishment specified in this chapter can be inflicted only in cases in which the offender is convicted on an indictment [? or information].

1 24 & 25 Vict. c. 100, s. 47.

CHAPTER XXVIII

1RAPE, ETC.

ARTICLE 269.

DEFINITION OF CARNAL KNOWLEDGE.

2 CARNAL knowledge means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation.

ARTICLE 270.

DEFINITION OF RAPE.

3 Rape is the act of having carnal knowledge of a woman without her conscious permission, such permission not being extorted by force or fear of immediate bodily harm; but if such permission is given, the act does not, except in the case next hereinafter mentioned, amount to rape, although such permission may have been obtained by fraud, and although the woman may not have been aware of the nature of the act.

6 Whereas before the Criminal Law Amendment Act 1885

1 Draft Code, Part X. ss. 207-11.

2 24 & 25 Vict. c. 100, s. 63, and see R. v. Cox, 1832, 1 Moo. C. C., 337, and R. v. Allen, 1839, 9 C. & P. 31, decided on the earlier enactment, 9 Geo. 4, c. 31, s. 18. Proof of emission is not needed under the Criminal Law Amendment Act 1885, see R. v. Marsden, 1891, 2 Q. B. 149.

3 See the cases in the Illustrations, and see 1 Russ. Cr. 858, &c.

4 See R. v. Dee, Irish C. C. R., reported in Law Times, Jan. 24, 1884. 5 It would, however, amount to an offence under Article 194 (ƒ). The effect of the Criminal Law Amendment Act appears to be that R. v. Flattery is no longer law, though it was recognised as having created doubts as to R. v. Barrow, &c., which doubts are declared to have been well founded, but I think the point doubtful.

6 48 & 49 Vict. c. 69, s. 4. The doubts referred to were founded on the cases of R. v. Flattery, 1877, 2 Q. B. D. 410, and R. v. Barrow, 1 C. C. R. 156.