38. Attempt to commit a Rape. Indictment. The jurors for our Lady the Queen, upon their to wit. Soath present, that A. B., on the day of in the year of our Lord unlawfully did make an assault upon one C. D., and her the said C. D. did then beat and ill-treat, with intent her the said C. D. then violently and against her will feloniously to ravish and carnally to know: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [Add a count for a common assault, as ante, p. 282. Misdemeanor, imprisonment with or without hard labour, for not more than two years; and the court may also fine the offender, and require him to find sureties for keeping the peace. 9 G. 4, c. 31, s. 25, see ante, p. 285. As to costs, see ante, p. 187. Upon this indictment the defendant may be convicted, although the evidence prove that the offence of rape was actually completed-unless the court discharge the jury, and order the defendant to be indicted for the felony. 14 & 15 Vict. c. 100, s. 12, ante, p. 95. Evidence. To maintain this indictment, the prosecutrix must prove 1. An attempt at penetration, but not successful,— -or prove a struggle with the prisoner, showing from his acts or expressions that his intent was to have connexion with her. Where upon an indictment for an assault with intent to commit a rape, the evidence was, that the defendant, a medical man, being about to administer an injection to the prosecutrix, desired her to place her head on the bed and her feet on the floor, he then raised her clothes and administered the injection, and desired her to remain still, but she found then that he was about to have connexion with her, and had penetrated her person a little, when she immediately arose and ran down stairs, and he quitted the house: Coleridge, J., held, that if this had been committed with force, the offence of rape would have been committed; but as that was not the case, the defendant could not be convicted of an assault with intent to commit a rape, although what he did was sufficient to convict him on a count for a common assault. R. v. Stanton, 1 Car. & K. 415. 2. The intent with which the assault was committed, will be sufficiently indicated by the words or acts of the defendant; the attempt must be made with force and violence, against the will of the prosecutrix, as in rape, ante, p. 305. If you prove the assault, but fail in proving the intent, the party may still be convicted on the second Count, as for a common assault. Where, upon an indictment against a schoolmaster, for an assault with intent to commit a rape upon one of his female scholars, with a second count for a common assault, it appeared from the evidence that he did not actually attempt to commit a rape, nor perhaps intend it, but he had taken most indecent liberties with the person of the girl, and without her consent, although she did not actually offer resistance: the judges were of opinion that the evidence was fully sufficient to support the count for the common assault, although not that for the assault with intent to commit a rape. R. v. Nichol, R. & Ry. 130. to wit. 39. Sodomy. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of in the year of our Lord in and upon one C. D., feloniously did make an assault, and then feloniously, wickedly, and against the order of nature had a venereal affair with the said C. D., and then feloniously did carnally know the said C. D., and then feloniously, wickedly, and against the order of nature, with the said C. D. did commit and perpetrate the abominable crime of buggery: against the form of the statute, in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony, death; 9 G. 4, c. 31, s. 15. Upon this indictment the jury may find the prisoner not guilty of the felony, but guilty of an attempt to commit it; and thereupon he shall have judgment, as if he had been indicted for the attempt to commit the felony, and was found guilty: 14 & 15 Vict. c. 100, s. 9: namely, imprisonment, with or without hard labour, for not more than two years; and the court may fine the offender, and require him to find sureties for the peace. 9 G. 4, c. 31, s. 25. Evidence. The only evidence required, is proof of penetration. See stat. 9 G. 4, c. 31, s. 18, ante, p. 305. A man may be guilty of the offence with a woman; and there has been an instance of a man indicted and tried for having committed this offence upon his own wife, although she resisted as much as she could. R. v. Jellyman, 8 Car. § P. 604. If committed with a boy under fourteen years of age, whether as agent, R. v. Allen, 2 Car. & K. 869, or pathic, 1 Hale, 670, the adult alone can be convicted. Where, upon an indictment of this kind, it appeared that the prisoner forced open the mouth of a boy of seven years of age, put in his private parts, and in that situation proceeded to a completion of his lust: the judges held that it did not amount to the crime of sodomy. R. v. Jacobs, R. § Ry. 331. Either party, if consenting, is an accomplice; and if he appear as a witness, his testimony must be confirmed. Per Patteson, J., in R. v. Jellyman, supra. All persons present, aiding and abetting, are principals in the second degree, and punishable in the same manner as the actors. 1 Hale, 670. 40. Attempt to commit Sodomy. Indictment. The jurors for our Lady the Queen, upon their to wit. Soath present, that A. B., on the day of in the year of our Lord -, unlawfully did make an assault upon one C. D., and him the said C. D. then did beat and illtreat, with intent then feloniously, wickedly, and against the order of nature to have a venereal affair with the said C. D., and then feloniously carnally to know the said C. D., and then feloniously, wickedly, and against the order of nature with the said C. D., to commit and perpetrate the abominable crime of buggery against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Misdemeanor; imprisonment, with or without hard labour for not more than two years; and the court may also fine the offender, and require him to find sureties for keeping the peace. 9 G. 4, c. 31, s. 25. See ante, p. 285. As to costs, see ante, p. 187. Upon this indictment the defendant may be convicted, although the evidence prove the felony ;-unless the court discharge the jury, and order the defendant to be indicted for the felony. 14 & 15 Vict. c. 100, s. 12, ante, p. 95. Evidence. The evidence in this case is merely of an attempt to penetrate. Or if resistance were made, then evidence must be given of the struggle, and of words or acts of the prisoner from which his intent to commit the offence may be implied. 41. Bestiality. Indictment. The jurors for our Lady the Queen, upon their to wit. oath present, that A. B., on the day of in the year of our Lord feloniously, wickedly, and against the order of nature, had a venereal affair with a certain [cow], and then feloniously did carnally know the said cow, and then feloniously, wickedly, and against the order of nature with the said cow did commit and perpetrate the abominable crime of buggery: against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony, death. 9 G. 4, c. 31, s. 15. Upon this indictment, the jury may find the prisoner not guilty of the felony, but guilty of an attempt to commit it; and thereupon he shall have judgment, as if he had been indicted for the attempt to commit the felony and was found guilty; 14 & 15 Vict. c. 100, s. 9; namely, imprisonment, with or without hard labour, for not more than two years, and the court may fine the offender, and require him to find sureties for the peace. 9 G. 4, c. 31, s. 25. Evidence. The only evidence required, is evidence of penetration. See 9 G. 4, c. 31, s. 18, ante, p. 305. And where the prisoner, after penetration, was interrupted, and withdrew from the animal (a ewe) before emission: Park, J., held that the offence in law had been completed by penetration alone. R. v. Cozens, 6 Car. & P. 351. The offence may be committed with "any animal." 9 G. 4, c. 31, s. 15. Where in the indictment it was called a "bitch," it was holden sufficient, although the females of foxes and of some other animals are so called, as well as the female dog. R. v. Allen, 1 Car. & K. 495. 42. Carnally Knowing a Girl under ten Years of Age. to wit. Indictment. The jurors for our Lady the Queen, upon their oath present, that A. B., on the day of in the year of our Lord · feloniously did unlawfully and carnally know and abuse a certain girl named C. D., she the said C. D. being then under ten years of age, to wit, of the age of- years against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. Felony, 9 G. 4, c. 31, s. 17; transportation for life. 4 & 5 Vict. c. 56, s. 3. Evidence. To maintain this indictment, it is necessary to prove 1. Penetration, as in rape. See stat. 9. G. 4, c. 31, s. 18, ante, p. 305, and see R. v. Lines there mentioned. A boy under fourteen years of age cannot be convicted of this offence; in this respect the law is the same as in the case of rape. See ante, p. 305. It is no excuse that the girl consented. If you fail in proving the offence, the jury may convict the defendant of an attempt to commit it, 14 § 15 Vict. c. 100, s. 9, ante, p. 94, if the evidence warrant it. 2. That the girl, at the time of the committing of the offence, was under ten years of age. A variance in the age between the statement in the indictment and the proof, will not be material, provided the age be proved to be under ten. As to the competency of the girl to give evidence, see ante, p. 150. 43. Carnally Knowing a Girl, between the Ages of Ten and Twelve. Indictment. The jurors for our Lady the Queen, upon their day of to wit. Soath present, that A. B., on the in the year of our Lord- " unlawfully did carnally know and abuse a certain girl named C. D., she the said C. D. then being above the age of ten years and under the age of twelve years, to wit, of the age of years against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. [You may add a count for a common assault, as ante, p. 282. Misdemeanor; imprisonment with or without hard labour, for such time as the court shall award. 9 G. 4, c. 31, s. 17. As to costs, see ante, p. 187. Upon this indictment, the defendant may be convicted of an attempt to commit the offence; 14 & 15 Vict. c. 100, s. 9, ante, p. 94; in which case he will be punishable with fine or |