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houses, some of which houses and shops That Railway Place was a public did formerly, but do not now belong to thoroughfare, and that the respondent the company

was not a wilful trespasser. 7. That Railway Place is not a cul de 15. On the part of the appellant an sac, but presents the appearance of an opposite view was held and contended for. ordinary public street, and that the only 16. I was, however, of opinion that the fact to mark it as being railway property respondent was not wilfully trespassing. and not a public street, is that an iron 17. The question of law arising therepost stands at each corner of one end from is set out in the preceding parathereof, where Railway Place runs into graph, and the opinion of the Court is Fenchurch Street, on which posts the requested thereon, and as to whether I words Blackwall Railway are placed, but ought to have convicted the said responthat these posts otherwise present the dent upon

the facts before me. appearance of ordinary street posts.

8. It was also proved that at one time, Giffard (Marriott with him), for the some years ago (how long however was appellant.—The justice was wrong in disnot shewn), a chain was occasionally missing the complaint, as it is clear that stretched from one post to the other, but the respondent was wilfully trespassing that this has not been done for some upon the premises of the company. years.

There was no dispute that Railway Place 9. That foot passengers pass through

did not belong to the company. The reRailway Place as if it were a highway, spondent refused to move from the stand, on their way to other streets, or to the

and in wilfully doing what was a trespass public-houses and shops in the neighbour

was a wilful trespasser. hood of the station, and that, besides cabs

J. Browne.Jones v. Taylor (1) is and carriages going to the station, others an authority to shew that the juspassed through Railway Place at all tice was right in refusing to convict. hours to take up or set down at the shops

That case arose under this very Act of or houses in the neighbourhood, or to

Parliament. The respondent went upon proceed to other streets.

premises of a railway company for the 10. That the stand is not paved or purpose of repairing waggons which were kerbed differently to the rest of the car- lawfully there. The justice decided that riage pavement on Railway Place, and is he was not liable to be convicted as a wilful not a regular cab-stand.

trespasser, and this Court held that they 11. That Railway Place is paved,

were not bound to find that he was a wil. cleansed and lighted by the railway com

ful trespasser. In the course of the arpany, but that there is nothing in the gument, Wightman, J., said, “ Is not a paving or lighting so peculiar in appear- wilful trespasser he who chooses to come ance as to distinguish it from the paving on the land without believing that he has and lighting of an ordinary public street. any right?” The Act treats the trespass

13. Lastly, from these facts that the as a crime, and without the mens rea it place presented the appearance of a pub- could not be committed by the respondent. lic street, and there being neither gates The intention of the Legislature was that nor walls around it, but shops, public- the offence should be committed by a houses and private houses and offices man who, without any claim of right, with the foot pavement in front thereof goes upon the station or the premises conabutting on to the place, I was satisfied nected therewith, and refuses to go away that no person who was not familiar with when requested to do so. the history of the locality, or the title of the property, and being guided in form

BLACKBURN, J.-I think that, notwithing his judgment by the appearance of standing the case of Jones v. Taylor (1), the plan, would have considered it other the judgment of which is as brief as it than a public street.

possibly could be, if the respondent really 14. On the part of the respondent it

(1) 1 E. & E. 20; s. c. 28 Law J. Rep. (N.s.) was contended

M.C. 204n.

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did intentionally and purposely stay upon acts on the part of a grown-up man in the premises which are part of the rail. ignorance of the nature of the acts to be way premises after being ordered off, he done and done, the man was held to be did so wilfully, though he might fancy rightly convicted of an indecent assault. that because other people were allowed to stay there upon certain terms, he was Case reserved by the Deputy Assistant entitled as of right to stay there without Judge of Middlesex. any terms at all, and honestly believed so; At the General Session of the Peace for such a belief as that does not at all

pre- the county of Middlesex, on the 4th day vent the trespass being a wilful one. If of June, 1872, James Lock was tried he went there and stayed under a claim before me upon an indictment, which of right which would raise a question of charged him with indecently assaulting title to land, the justice would have to hold Frederick William Sandell and George his hand. The justice seems to think it Goodge. immaterial whether the company are the It was proved by three witnesses that owners of the land. There is no pretence they saw the defendant in a field by the on the part of the respondent, that the Edgware Road take each of the boys in company were not owners of the land, succession upon his legs, play with their but, on the contrary, there is very clear private parts, unbutton his trousers and and strong evidence that they were the theirs, lie

upon them and move himself as owners.

if in the act of having connexion with a There is nothing to shew that the respondent was not a wilful trespasser. The two boys, each of whom was only Judgment for the appellant. eight years old, proved that the defendant

met them in the Edgware Road, said ho NOTE.— This point was decided at the above

would take them to some fireworks, gave dite, but the case was sent back to be stated more clearly and fully upon another point. The

them biscuits and some beer, took them into case as amended came on for argument upon the the field, went up to a wall to which they 9th of November, when the Court held that upon followed him, there sat upon the grass, that point also, which need not be reported, the placed them successively upon his lap, justice had come to an erroneous conclusion. There were three similar cases which were decided

laid his hand on their private parts, unin the same way.

buttoned their trousers and his own, threw

them down on their backs and lay upon Attorneys-Lewis & Lewis, for appellant; W. H. them, moving himself in an indecent Shaw, for respondent.

manner, which one of the boys described by a gesture. The defendant was interrupted by the coming up of the three witnesses, when he told the boys not to

tell. The boys were not asked by the [CROWN CASE RESERVED.]

counsel on either side if it was done 1872.

against their will or with their consent, Nov. 23. THE QUEEN V. LOCK.

but they stated that they did not know Assault Indecency Consent Mere

what the defendant was going to do to

them when he took them into the field Submission-Children.

and placed them on his lap and laid them An assault must, in the absence of fear or on the ground. froud to procure consent, be an act done

On these facts it was contended by the contrary to the consent of the patient, but counsel for the defendant that there was mere submission by the patient, in ignorance no case for the jury, inasmuch as the filthy of the moral nature of the act, to an act of acts were not done against the will of the indecency done by the agent, does not amount

boys. to such consent; therefore where two boys of Having determined that it was a ques. eight years of age submitted to indecent

tion for the jury, in summing up I stated Coram Kelly, C.B.; Martin, B.; Brett, J.;

to them that the law recognised a disGrove, J.; and Quain, J.

tinction between mere submission and

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positive consent. That a person may sub- Metcalfe, for the prosecution.—The mit to an act done to him from ignorance, facts in this case amount to an assault on or his consent may be obtained by fraud, the little boys. There was no more conand in neither case would it be such a con- sent here than there would be in a child sent as the law contemplates. That con- who allows itself to be put under the sent means an active will in the mind of operation of a dentist. There was here tho the patient to permit the doing of the act mere submission of children of a tender complained of, and knowledge of what is

age to an act of an adult, of the moral to be done, or of the nature of the act that consequences and effect of which they were is being done, is essential to a consent to ignorant. He cited The Queen v. Day (1), the act. That it had been contended that The Queen v. Case (2), The Queen v. Wilinasmuch as an assault must be an act liams (3), The Queen v. Rosinski (4), done against the will of the patient, and the The Queen v. Bennett (5). boys did not expressly dissent there was [KELLY, C.B.— The cases where fraud no assault.

But that this assumes a con- was exercised to procure the consent do senting will on their parts, and both stated not apply as there was no fraud or dethat they did not know what the defend. ception practised in this case. BRETT, J., ant intended to do, nor the meaning of referred to the cases of rapes on idiot what he was doing. The facts of the women, as The Queen v. Fletcher (6), case were undisputed, and the question I The Queen v. Fletcher (7).] lett to the jury was whether, in their judgment, the boys merely submitted to

KELLY, C.B.- This conviction ought to the filthy act ignorant of what was going be affirmed. The question is whether to be done to them, or of the nature of submission by a person to acts, unconscious what was being done, or if they exercised

of the nature of the acts, makes the person a positive will about it and consented to a consenting party so as to prevent the acts what the defendant did. In the former done from amounting to an assault. There case they would find the defendant

can in such a case be no exercise of the will " guilty." In the latter case they

one way or the other, or consent, and would acquit him.

the question is whether there could be an The jury found the defendant“ guilty,” assault without the practice of any fraud

" stating that they did so, being of opinion upon the patient. It is like where an act that the boys merely submitted to the

of the same nature is done upon a woman act of the defendant not knowing the

who is asleep, and our law would be nature of such act.

strangely defective if that were not to be The question being of frequent recur

an offence. Consent in such a case would rence, and the law appearing to be un- be out of the question. She cannot then settled, on the application of counsel for determine whether she will consent ornot, the defendant, I reserved for the opinion and yet the act may be unlawful and of this Honourable Court the question

amount to contact with her person. whether the definition of an assault “ that Threats to procure submission would it must be an act done against the will of bring the acts within assaults. Here the patient” extends to the case of sub- these children being perfectly unconscious mission to the act through ignorance of

of the nature of the act and not in a conits nature and where there is no posi

dition to exercise any consent one way or tive exercise of the will in the way of dis

the other, I think the conviction should sent, or if the active exercise of an actual

be affirmed. dissenting will is necessary to be proved in order to constitute an assault.

(1) 9 Car. & P. 722.

(2) 1 Den. C.C. 510; s. c. 19 Law J. Rep. (x.s.) If it should be the opinion of this M.C. 174. Honourable Court that the direction to (8) 8 Car. & P. 286. the jury was wrong the conviction will be (4) 1 Moo, C.C. 19. quashed. If right it will be confirmed.

(5) 4 Fost. & F. 1106.

(6) Bell C.C. 63; s. c. 28 Law J. Rep. (N.s.) The prisoner was admitted to bail.

M.C. 85.
No counsel appeared for the prisoner. (7) 35 Law J. Rep. (N.s.) M.C. 172.

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Martin, B.—I am of the same opinion. [CROWN CASE RESERVED.] I think this case is the same as that of a 1872.

THE QUEEN V. GUMBLE. master taking indecent liberties with a Nov. 23.) female scholar which has been held to be

Amendment Indictment for Larcenyan assault-The Queen v. Nichol (9). Brett, J.-I am of the same opinion. Pleading14 f. 15 Vict. c. 100. ss. 1,

18. There must be an act against the consent of the boys. The question is, did the judge An indictment alleged that the prisoner lay before the jury a proper direction as stole nineteen shillings and sixpence. The to consent? The two children were of Court ordered it to be amended at the trial tender years, and the act was done by a by describing the property stolen to be a man of mature years; they were awake sovereign, subject to the question whether the but they were young. If they consented, Court had power so to do. The jury found thongh ignorant of the moral nature of the prisoner guilty of stealing a sovereign : the acts, I think that would not be an -Held, that the Court had power to order assault, but the question is did they con- the amendment to be inade as a variance sent, for I think the act must be done between the statement and the proof in the contrary to their consent. Some parts of description of a thing named in the indict.

. the ruling of the learned judge might be ment, under 14 & 15 Vict. c. 100. s. 1. open to close criticism, but the substantial question is left whether the boys merely Case reserved by the chairman of the submitted to the acts ignorant of what Surrey Quarter Sessions. was going to be done, or of the nature of At the General Quarter Sessions of the what was being done, or if they exercised peace holden by continuance at St. Mary, a will about it and consented. Then did Newington, in and for the county of that amount to a direction that if the Surrey, on the 3rd day of July, A.D., 1872, children merely submitted and did not James Gumble was indicted for stealing consent, and the man knew it, it was an on the 29th of May, 1872, nincteen shil. assault. In that case submission is not lings and sixpence from William Jackson consent, and therefore I think the direc- Walton. tion was right, and the conviction should The prosecutor had been playing at be affirmed.

throwing sticks at cocoa-nuts on Epsom Grove, J.—I do not think the active Downs, and had to pay the prisoner sixexercise of a consenting will is necessary pence, but having nothing less than a to prevent an act being an assault. The sovereign, he said to the prisoner, “ Have consent may be positive or negative; if you change for a sovereign ? positive consent existed the conviction soner said, Yes,” and in consequence of would be wrong, but if negative only that prosecutor gave him a sovereign. it is right. I think it is right.

He then pulled some money out of his QUAIN, J.-The jury have found that pocket and said, “I haven't enough, I'll

Quain the boys merely submitted to the act, go and get it for you, I won't be a minute, therefore there was no consent. The just wait here.” The prosecutor waited question generally arises in cases of sleep nearly an hour for the prisoner and then or drunkenness, but here it is found that went for a policeman, leaving a friend these boys were ignorant of the nature of who had been with him all the time to the acts done to them. Therefore it can- wait for the prisoner. This he did for not be said that they consented in the quite another hour after the prosecutor true meaning of the word.

went for the policeman. The prisoner's Conviction affirmeil. son removed the sticks and cocoa-nuts at

the expiration of the first hour. The Attorneys-Ailen & Son, for prosccution. prisoner did not return and was not ap

prehended till the following Saturday, the 1st of July, on which occasion, when he

* Coram Kelly, C.B.; Martin, B.; Brett, J.; (9) Russ. & R. C.C. 130.

Grove, J; and Quain, J.

The pri


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saw the prosecutor's friend, he imme- had power to amend, it did amend the
diately ran away, and was only captured indictment before verdict by striking out
after à chase of some distance. On his “nineteen shillings and sixpence" and
apprehension 41. 10s. was found upon inserting “one sovereign.”]

In that view the case is met by the 14 It was objected by the prisoner's & 15 Vict. c. 100. s. 1, which enacts that counsel that there was no case against whenever on the trial of any

indictment the prisoner, for if he were guilty of any for any felony, there shall appear to be offence he was guilty of stealing a sove- any variance between the statement in reign, and that the Court had no power such indictment, and the evidence offered to amend the indictment.

in proof thereof in the name or descripI allowed the case to go on, and put it tion of any matter or thing whatsoever to the jury that if they believed that the therein named or described, it shall be prisoner at the moment of obtaining the lawful for the Court on the trial to order sovereign intended by a trick feloniously the indictment to be amended according to deprive the prosecutor of the possession to the proof. There was here a variance of the sovereign, they were to find him betwcen the description of the thingguilty. They found him guilty, and then money—and the proof. the questions were reserved for the deci- [BRETT, J.-Have you any case where sion of the Court for Crown Cases re- the description of the thing stolen has served, as to

been changed to represent a different Whether the prisoner being found thing? Martin, B.— It was never meant guilty of stealing a sovereign, could to describe the sovereign in this indictrightly be convicted under an indictment ment.] charging him with stealing nineteen shillings and sixpence; and also whether the KELLY, C.B.-I take the case Court would have had the power to served to state that the indictment was amend the indictment at an earlier stage amended at the trial, if the Court had of the case.

power to order the amendment to be The indictment was produced to the made by striking out the words

nineCourt, and the allegation ran as follows: teen shillings and sixpence," and insert“nineteen shillings and sixpence of the ing the words one sovereign,” and moneys of William Jackson Walton." looking at the 1st section of the 14 & 15 No counsel appeared for the prisoner. Vict. c. 100, I think the Court had power

to order such an amendment to be made. J. Thompson, for the prosecution.—The MARTIN, B.-I am of opinion that there thing stolen in fact was the sovereign. was a variance in proof, and I do not The defective allegation in the indictment think we could support the conviction is cured by the 18th section of the 14 & under the 18th section of the 14 & 15 15 Vict. c. 100. That section enacts Vict. c. 100; but I think there was a that in every indictment in which it shall


in the Court to amend the indictbe necessary to make any averment as to ment according to the proof. any money, it shall be sufficient to des- BRETT, J.-I think that “nineteen shilcribe such money simply as money, with. lings and sixpence was meant to be the out specifying any particular coin ; and description of what was stolen, and that such allegation, as far as regards the de- the 1st section of 14 & 15 Vict. c. 100 scription of the property, shall be sustained

gave the Court power to amend the inby proof of any amount of coin although dictment, and I therefore answer the the particular species of coin of which second question in the affirmative. such amount was composed shall not GROVE, J., and Quain, J., concurred. be proved. The allegation of nineteen

Conviction affirmed. shillings and sixpence is immaterial, and may be rejected as surplusage.

Attorneys-Rogers & Sons, for the prosecution. [KELLY, C.B.-Upon the case as reserved we must take it that if the Court

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