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OFFENCE

.

lodgers having

not enter house.

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).

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

leave by artifice. it is not hamesucken if by some artifice the person injured is induced voluntarily to leave his house and is then attacked (6).

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

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

from house when

immaterial.

purpose

essential

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, 204.-Will. Broun and Jas. Hender. son, July 9th 1832 ; Bell's Notes 87.-Mr Bell states this case somewhat doubtfully.

6 Hume i. 317.-Alison i. 204.

7 Hume i. 318 and case of Macdonald and Fraser in note a.Alison i. 204, 205.

PLACE OF
OFFENCE.

to escape.

ing warrant.

with the purpose of doing violence, but only commit Using violence

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 Oficer execut- detected use violence in trying to escape.

Nor is it 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 hamesueken if a person on being assailed outside into his house.

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).

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 in

tended, 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 Marderous 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

THE VIOLENCE
MUST BE SERIOUS.

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 t.

8 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.

There Penetration

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). 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
Burtnay in note a.-Alison i. 213,
214.

8 Robertson Edney, H.C., Nov.
8th 1833; Bell's Notes 83.

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.

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

Resistance overcome.

Fraudulent

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 Fear of death. 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).

Stupefaction.

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

Mode of overcoming immaterial.

Holding.

Drugging.

Resistance of adult must be to the utmost.

Cripple.

"tion, though not to the full ordi-
"nary adult extent."-Richard Jen-
nings, Glasgow, April 24th 1850
(Lord Cockburn's MSS.)

1 Will. Fraser, H.C., June 21st
1847; Ark. 280.

2 Chas. Sweenie, H.C., June 18th 1858; 3 Irv. 109 and 31 S.J. 24.

3 Hans Rigolson, Perth, May 1811, mentioned in Judge's charge in the case of Thos. Mackenzie, H.C., Feb. 18th 1828; Syme 323.

4 Hume i. 302, and case of Fraser in note 2.-Alison i. 211, 212.

5 Hume i. 303.-Alison i. 212, 213.-See Will. Fraser, H.C., June 21st 1847; Ark. 280 (opinions).— Chas. Sweenie, H. C., June 18th 1858; 3 Irv. 109 and 31 S. J. 24.-The soundness of Alison's opinion, that the decision of this question should

turn on the previous conduct of the woman, may be doubted. Her previous conduct may be evidence creating a presumption against the feloniousness of the intent of the drugging, but can hardly elide it if otherwise proved. Such a case does not appear to have occurred in Scotch practice. In one case the administration of a large quantity of whisky was made part of the charge; but the woman was not rendered insensible, and it was only charged that she was stupefied and weakened, and that the accused accomplished his purpose notwithstanding all the resistance she was able to offer.-Duncan M'Millan, Jan. 9th 1833; Bell's Notes 83.

6 Hume i. 302.-Alison i. 212, 213. More ii. 375, 376.

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.

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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 ever small an extent, the offence "would be complete, in conse

quence of her inability to give a "mental consent."-See also Will. Clark, Perth, April 12th 1865; 5 Irv. 77 and 37 S.J. 417.

4 A husband may be guilty art and part of a rape on his wife. -Hume i. 306.-Alison i. 218.

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.

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