tends to injure the community at large, as breaches of the peace, acts tending to corrupt the public morals, homicide, mayhem, etc. But rape, perhaps assault, and, as a rule, offenses against property, are not committed where the person against whom the act is committed consents; and it can make no difference that the consent is given merely for the purpose of prosecution, and that it is not known to the other party.

When Consent is No Defense.-It has been said that the maxim "Volenti non fit injuria," applies in criminal as well as in civil cases, but this is far from true. It applies very generally in a civil action, when the person injured by an alleged wrong is seeking to recover damages, and when the controversy is solely between the individuals themselves, for it is only reasonable that a man who has consented to an act, and thereby brought injury upon himself, should not be heard to complain. The reason for the rule, however, does not apply to the full extent to crimes, which are punished because of the wrong and injury to the public, and not merely because of the injury to the individual.

If an act is punished because of the injury, to the community at large, rather than because of any injury to a particular individual, consent of the individual does not make it any the less a crime, nor prevent the state from punishing it. For example, a breach of the peace is punished because of the injury to the public, and, on a prosecution for an act constituting a breach of the peace, consent of the parties engaged is no defense. Prize fighting and affrays are within this principle. They are none the less crimes because the fighting is by agreement.151 Likewise a riot is none the less a crime because the person at whom it is directed does what he can to pacify the rioters.1 And so it is of acts which are punished because of their tendency to corrupt public morals, or shock the sense of public de

151a

151 Rex v. Billingham, 2 Car. & P. 234; State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801; Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328, Beale's Cas. 148.

151a Sanders v. State, 60 Ga. 126.

cency, etc., as open and notorious lewdness, bigamy, seduction, incest, etc. 152

There are some offenses, directed more particularly against individuals, which constitute crimes notwithstanding the consent of the person injured. Public policy requires that the right to life and member be regarded as inalienable, and consent of the person injured is no defense on a prosecution for homicide or mayhem. Where a man, to have an excuse for begging, caused another to cut off his hand, both were indicted and convicted.153 It is murder to kill another in a duel,154 and a person who counsels, aids, or abets another in the commission of suicide is guilty as an accessary before the fact, or as principal in the second degree.155

On the same principle, a person is guilty of manslaughter if he causes another's death in a prize fight, or in an unlawful game, notwithstanding the other's consent to the fight or game.156 The same is true of homicide in committing an abortion. 157

Offenses in Which Want of Consent is Necessary.—There are some crimes against the persons of individuals which cannot be committed except without the consent of the person injured. Rape is such an offense. It is not committed where the woman freely consents to the intercourse, however reluctantly,158 though subsequent consent to intercourse will not purge an assault or attempt to commit rape.1

158a

152 Tucker v. State, 8 Lea (Tenn.) 633; State v. Martin (Iowa) 101 N. W. 637. And see post, § 458 et seq.

153 Wright's Cas. Co. Litt. 127a, Beale's Cas. 145.

154 Reg. v. Barronet, Dears. C. C. 51.

155 See Com. v. Mink, 123 Mass. 422, 25 Am. Rep. 109; State v. Levelle, 34 S. C. 120, 13 S. E. 319.

156 Reg. v. Bradshaw, 14 Cox, C. C. 83, Beale's Cas. 146.

157 State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776; State v. Magnell, 3 Penn. (Del.) 307, 51 Atl. 606; post, § 263(d).

158 Post, § 293 et seq.

158a State v. Hartigan, 32 Vt. 607, Mikell's Cas. 72; State v. Cross, 12

Want of consent is necessary according to the better opinion in assault and assault and battery. Some courts have held that on a charge of assault or assault and battery, consent of the person injured is no defense,159 but this view is not sound.160 If the assault is committed under such circumstances as to constitute a breach of the peace, as in the case of a prize fight or affray, an indictment will lie, notwithstanding the consent, but the indictment in such a case should be for the breach of the peace, and not for the assault.161

As a rule, offenses against property, from their very nature, can only be committed in the absence of consent on the part of the person against whom they are committed. To constitute larceny, there must be a trespass in taking the property, and this cannot be where the owner freely consents to part with the property. It can make no difference that he consents for the purpose of afterwards prosecuting the party, and that the fact that he consents is not known to the other party.162 The same is true of extortion by putting in fear,162a and of robbery, to constitute which the property must be taken from the person or in the presence of another by violence, or by putting him in fear.163 And it is true, also, of burglary, in which there must be a breaking and entry.164

Iowa, 66, 79 Am. Dec. 519; State v. Atherton, 50 Iowa, 189, 32 Am. Rep. 134; People v. Marrs, 125 Mich. 376, 84 N. W. 284.

159 Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328, Beale's Cas. 148; post, §§ 216, 217.

160 See Reg. v. Martin, 2 Mood. C. C. 123, Beale's Cas. 146; State v. Beck, 1 Hill (S. C.) 363, 26 Am. Dec. 190, Mikell's Cas. 68; Reg. v. Woodhurst, 12 Cox, C. C. 443; Reg. v. Day, 9 Car. & P. 722; Champer v. State, 14 Ohio St. 437, Mikell's Cas. 69.

181 State v. Burnham, 56 Vt. 445, 48 Am. Rep. 801; Champer v. State, 14 Ohio St. 437, Mikell's Cas. 69.

162 See People v. Hanselman, 76 Cal. 460, 18 Pac. 425, 9 Am. St. Rep. 238; Reg. v. Lawrance, 4 Cox, C. C. 438; post, § 318.

162a People v. Gardner, 73 Hun, 66, 25 N. Y. Supp. 1072.

163 Connor v. People, 18 Colo. 373, 33 Pac. 159, 36 Am. St. Rep. 295; McDaniel's Case, Fost. C. L. 121, Beale's Cas. 152; post, § 376.

164 Rex v. Egginton, 2 Leach, C. C. 913; Allen v. State, 40 Ala. 334.

Statutory Offenses in Which Consent is No Defense.-There are many offenses punished by statute in which consent of the person more particularly injured is no defense. Among these may be mentioned bigamy,165 incest,166 seduction,167 and carnal knowledge of girls under a certain age.168

151. Going beyond the Consent.

Consent can be relied upon as a defense only when the act was within the consent. Thus, when a man hands another goods, with the understanding that he may take them on paying for them, and the other runs off with them without paying, there is no such consent to part with the goods as will defeat an indictment for larceny.169 Likewise a woman may consent to the sexual act, yet the man may treat her so roughly and in so rude and insolent a manner, and so scandalously abuse her in the performance of the act, as to commit thereby an assault and battery.169a There is some difficulty and conflict of opinion as to the application of this principle, as we shall see at length in treating of larceny, assault, and rape.170

152. Persons Incapable of Consenting.

In any case, in order that the consent of the person injured may be a defense, he or she must have been capable of consenting. Thus, though want of consent is an essential element of rape, it is rape, even at common law, to have carnal knowledge of a girl under ten years of age, whether she consents or not, for the law considers that a child of such tender years has not sufficient capacity to consent to intercourse.171 The same is

165 Post, § 459. 160 Post, § 460.

167 Post, § 464.

168 Post, § 298.

169 Post, § 318 (c).

169a Richie v. State, 58 Ind. 355.

170 Post, §§ 220, 297, 318.

171 Post, § 298.

true of a woman who is insensible through sleep, drugs, drunkenness, or any other cause.172 In some states, statutes punish the carnal knowledge of girls, even when they are as old as eighteen years, whether they consent or not.173 A child of tender years is incapable of consenting to an assault and false imprisonment.173a Likewise abduction and kidnapping are committed notwithstanding consent of the person at whom the acts are directed, if by reason of youth, insanity, intoxication or other defect he is incapable of giving an intelligent consent. 173b

153. Consent Induced by Duress.

Consent induced by duress so great as to be sufficient to reasonably destroy free will is only apparent consent, and is no defense. Thus, consent of a woman to sexual intercourse, or of a man to part with his property, is no defense in a prosecution for assault, rape, robbery, or larceny, if the consent was induced by threats of death or great bodily harm.174 The degree of duress may be so slight as not to vitiate consent. The degree required will vary according to the act.1

154. Consent Induced by Fraud.

175

Whether fraud vitiates consent is not clear, and there is much conflict in the decisions. The question has arisen in prosecutions for assault, rape, and larceny, and will be considered in dealing with those crimes.176

172 Post, § 295.

178 Post, § 298.

173a Com. v. Nickerson, 5 Allen (87 Mass.) 519, Mikell's Cas. 75. 173b Kidnapping sailor, Hadden v. People, 25 N. Y. 373; child, State v. Rollins, 8 N. H. 550; State v. Farrar, 41 N. H. 53.

174 Post, §§ 218, 296, 318 (d), 370.

175 As to rape, see post, § 293. As to robbery, see post, § 370. As to larceny, see post, § 318 (d). As to assault, see post, § 218.

176 Post, §§ 220, 297, 318.

See Rex v. Rosinski, 1 Mood. C. C. 19,