OFFENCE. dwelling. The word house means a person's separate dwelling. PLACE OF Although it would not be hamesucken for one lodger House means to attack another, yet, if a house is let in different separate portions, each family having an exclusive right to its own room or set of rooms, it is hamesucken if one tenant seek another and attack him in his own part of the house. For it is the violation of the security of a private dwelling that constitutes the offence of hamesucken (1). The protection extends to the possessor's Household, and family and servants (2), or even lodgers, if the house fixed abode. be their fixed home for the time being (3). lodgers having not enter house. from house when It is not essential that the assailant enter, or that Assailant need the violence be done in, the house. If he fire from without, or thrust a sword through window or doorway, or seize the sufferer and drag him out and then assault him, the crime is hamesucken (4). Indeed Sufferer fleeing the same holds if the person whose house is attacked, attacked. being in reasonable fear of injury if he remain till the offenders have broken in, try to escape by another door or window and be pursued and injured (5). But or induced to it is not hamesucken if by some artifice the person injured is induced voluntarily to leave his house and is then attacked (6). leave by artifice. immaterial. It does not matter whether the offender has entered Mode of entry the house by force, artifice, or stealth, if his purpose was to do violence (7) But the purpose is essential. No vio- Personal violence lence by breaking furniture, cursing at and abusing the inhabitants or the like, will constitute the crime. Nor is it hamesucken if the assailant did not come 1 Hume i. 314, and case of Hamilton in note 5.-Alison i. 202. 2 Hume i. 314, case of Campbell and M'Kinnon there, and case of Gray in note 3.-Alison i. 202, 3 Hume i. 314, case of Johnston. (In this case the place seems to have been a house of ill-fame, and the woman assaulted an inmate of it.-Burnett 94). Alison i. 282.More ii. 374. 4 Hume i. 316.-Alison i. 203.-More ii. 374. 5 Hume i. 317.-Alison i. 203, 6 Hume i. 317.-Alison i. 204. Alison i. 204, 205. essential. PLACE OF Using violence with the purpose of doing violence, but only commit violence on an impulse subsequent to his entering the house (1), as, if a person privily enter a house to commit a crime, such as fire-raising, and on being Officer execut- detected use violence in trying to escape. Nor is it ing warrant. into his house, hamesucken if an officer use violence in a house in executing a warrant in bona fide, although he exceed his duty in executing it, or the warrant itself be defective, or do not apply to the person he is trying to arrest. The seeking here is not to do violence, but to arrest, and the violence is the result of resistance; therefore, whatever crime the officer may commit in exceeding his duty, it is not hamesucken (2). Nor is Sufferer fleeing it hamesucken if a person on being assailed outside his house, run into it, and the assailant follow him. For here there is no seeking of him in his own house, but only a pursuit in the heat of an attack already begun (3). THE VIOLENCE MUST BE SERIOUS. Lastly, the violence must be serious and material. Insulting conduct, though amounting to assault, is not enough. There must be a manifest intention to do real harm (4). But besides the case of actual injury, there are situations where the wrong, undoubtedly intended, though not accomplished, makes the crime Attempt at rape complete. Attempt at rape upon a woman in her house, and attempt forcibly to carry off a person from his dwelling, for whatever illegal purpose, are cases of hamesucken, if the house was entered with intent to Murderous attack commit the offence (5). It is also hamesucken to fire positive injury. at any one in his house, though the weapon miss fire or the shot do not take effect, or to chase him with a or violent ab duction. though no 1 Hume i. 319,-Alison i. 199, 204, 205. 2 Hume i. 319, and case of Adamson there.-Alison i, 201, 3 Hume i. 319 and case of Thompson and Inglis there.-Alison 199, 200. 4 Humei. 320 and case of Haldane there.-Alison i. 205, 206.-More ii. 375-See also Burnett 91, case of M'Naught and Gordon in note +. 5 Hume i. 320 and case of M'Gregor there.-Alison i. 200, 206. -More ii. 375. OFFENCE. drawn sword, even though he escape (1). And on the PLACE OF same principle that it is robbery and not theft to extort Concussion by property by threats with a pistol, though no injury be violent threats. inflicted, it is hamesucken to enter a house, and by threats of violence to make an inmate sign an obligatory deed under bodily fear. In fact if the intent be to concuss by fear of violence into submission to demands, the crime is hamesucken (2). Accordingly, hamesucken has often been conjoined with charges of robbery and stouthrief (3). Hamesucken is a capital offence (4). In modern PUNISHMENT. practice the pains of law are invariably restricted, but it is probable that no less punishment than penal servitude would be inflicted (5). RAPE. RAPE sufficient. Rape is the carnal knowledge of a woman forcibly SCOPE OF TERM and against her will (6), or of a girl below twelve years of age, whether by force or not (7). There Penetration must be penetration (8); but this is sufficient (9), without emission (10), And " penetration " means only that the person has been entered, without any distinction as to the extent of penetration (11). 1 Hume i. 320, 321, 322, and case of Stewart in note a.-Alison i. 206. John Stewart, H.C., July 14th 1827; Syme 236. 2 Hume i. 322.-Alison i. 207.Case of Stewart supra (Lord Gillies' charge). 3 Hume i. 321, case of Gray there. -i. 322, cases of Whiteford and Judd and Clapperton in note a.— Alison i. 207. 4 Hume i. 312. 5 See observation by Lord Cowan in the case of David R. Williamson, H.C., June 13th 1853; 1 Irv. 244. 6 Hume i. 301, 302.-Alison i. 209. Hume i. 303, and cases of Cur rie and Ripley there: and case of 8 Robertson Edney, H.C., Nov. 9 Alex. Macrae, Jan. 7th 1841; Bell's Notes 83. 10 Alison i. 209, 210.- Arch. Robertson, H.C., Mar. 12th 1836; 1 Swin. 93 and Bell's Notes 82 and 8 S.J. 310.-Duncan M'Millan, H.C., Jan. 9th 1833; Bell's Notes 82. 11 Alex. Macrae, Jan. 7th 1841; Bell's Notes 83.-In one case where the injured party was a child, and where the accused was convicted, the medical evidence was, that "there certainly had been penetra SCOPE OF TERM RAPE. Resistance overcome. Fraudulent Mode of overcoming imma terial. The force used must be force by which physical resistance is actually overcome. It is not rape to obtain possession of a woman's person by personating her access not rape. husband in the dark (1), or by taking advantage of her while asleep (2), though both of these acts are criminal. On the other hand, it is rape if physical resistance be completely overcome by whatever means, as by holding the victim with or without the assistance of others (3); or by striking her until she becomes stupefied, or fears for her life if she resist further; or by putting her in direct alarm of her life, as by threatening her with a pistol or knife, or any other dangerous weapon (4). Nor can it be doubted that having connection with a woman, whose resistance has been overcome by drugging her, is rape (5). Holding. Stupefaction. Fear of death. Drugging. Resistance of adult must be to the utmost. Cripple. In the case of an adult woman, it is rape only where resistance has been to the utmost. It is not rape if she, after however much distress, at last yield consent. The resistance must be to the last, and until overcome by unconsciousness, complete exhaustion, brute force, or fear of death (6). But this does not hold if the "tion, though not to the full ordi- 1 Will. Fraser, H.C., June 21st 2 Chas. Sweenie, H.C., June 3 Hans Rigolson, Perth, May 5 Hume i. 303.-Alison i. 212, turn on the previous conduct of the RAPE. woman is a cripple unable to resist (1). In the case SCOPE OF TERM of females below twelve years of age, no violence is Child below required to constitute the crime, as they are held in- twelve. capable of consent, and penetration is sufficient (2). An idiot is in the same position as a child. Even Idiot. where there is only weakness of mind, a smaller amount of resistance may be held to constitute rape than in the case of a person in full possession of her mental faculties (3). character does Forcible connection with a woman is rape in every woman's bad case, that of husband and wife alone excepted (4). . not exclude rape. Even a common prostitute may be the victim of a rape (5). man commit a There seems no rule as to the earliest age at which At what age can a boy may commit rape. It is a question of proof not rape. of theory. A boy of thirteen years and ten months old has been convicted of rape (6). Rape is a capital offence, but it is the invariable PUNISHMENT. practice to restrict the pains of law. Penal servitude for life, or for twenty years, is the usual punishment. CLANDESTINE INJURY TO WOMEN. WOMAN'S Although it is not rape to obtain possession of a PERSONATING woman's person, unless her will be overcome, or from HUSBAND. youth or want of intellect she have no will, it is a 1 Hume i. 303, and case of Mackie there. Alison i. 212. 2 Hume i. 303, and cases of Currie and Riply there.-Alison i. 213, 214. 3 In the case of Hugh M'Namara, H.C., July 24th 1848; Ark. 521, where the woman was only one degree removed from idiocy, it was laid down that if "she had shown "any physical resistance to how66 Wever small an extent, the offence "would be complete, in conse "quence of her inability to give a 4 A husband may be guilty art 5 Hume i. 304, 305.-Alison i. 214, 215.--Edward Yates and Henry Parkes, Glasgow, Dec. 24th, 1851; J. Shaw 528 and 24 S.J. 141. 6 Rob. Fulton, jun., Ayr, Sept. 20th 1841; 2 Swin. 564 and Bell's Notes 83. |