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the man personates the husband of the woman; though the act is in law an assault. Such act is also adultery in him, in those localities where the latter offence is indictable. And it has been held to be rape when committed on a woman laboring under delirium, and therefore insensible to the act.2

§ 344. The cases of greatest difficulty are where one, suspecting crime in another, lays a plan to entrap him; so that, even if there is consent, it is not within the knowledge of him who does the act. Here we see, from the principles already discussed, that, supposing the consent really to exist, though unknown to the other, no legal crime is committed. But exposing property, or neglecting to watch it, under the expectation that a thief will take this property; or furnishing any other facilities or temptations to such a wrongdoer, or to any other; is not a consent in law. A common case is that of burglars, who intending to break into a house and steal, tempt the servant of the occupant to assist them; and the servant, after communicating the facts to his master, is authorized to join them in appearance. Under such circumstances, clearly the burglars are not excused for what they personally do; but, it seerns, if the servant opens the door while they enter, they are not to be held criminally for this breaking.

Yet if

1 Rex v. Jackson, Russ. & Ry. 487; Reg. v. Saunders, 8 Car. & P. 265; Reg. v. Williams, 8 Car. & P. 286. And see Rex v. Stanton, 1 Car. & K. 415; Reg. v. Champlin, 1 Car. & K. 746.

* Rex v. Chater, 13 Shaw's J. P. 766, Archb. New Crim. Proced. 306. See, as to the question of rape, Vol. II. § 939.

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* Rex v. Egginton, 2 Leach, 4th ed. 913, 2 East P. C. 494, 666, 2 B. & P. 508; Reg. v. Williams, 1 Car. & K. 195; The State v. Covington, 2 Bailey, 569; Reg. v. Rathbone, 2 Moody, 242, Car. & M. 220; Reg. v. Gardner, 1 Car. & K. 628; Reg. v. Johnson, Car. & M. 218; United States v. Foye, 1 Curt. C. C. 364.

Rex v. Dannelly, Russ. & Ry. 310; Rex v. Headge, 2 Leach, 4th ed. 1033, Russ. & Ry. 160; Rex v. Whittingham, 2 Leach, 4th ed. 912; Reg. v.. Lyons, Car. & M. 217; Rex v. Ady, 7 Car. & P. 140.

6 Reg. v. Johnson, Car. & M. 218; Rex v. Egginton, 2 B. & P. 508, 2:

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he opens it at their request, why should they not be held, he being deemed their agent for this purpose, rather than the master's? An Irish case appears to go further than this query; for it even decides, that, where persons intending to commit burglary knock at the door of the prosecutor, who, apprised of their purpose and prepared for them, himself opens it, and on their rushing in and locking the door seizes and secures them, the offence of burglary is committed.1 And the doctrine as to the breaking seems to be, that a consent to it obtained by fraud,2 or by force,3 avails not the defendant. Also, according to decisions in North Carolina, if one delivers an article to his slave, and then stands by to detect a person trading for the article with the slave, contrary to the act of 1817, this circumstance does not make the trading lawful.4

§ 345. But where the master goes further; and, instead of merely attempting to detect a crime already contemplated, directs his servant to deliver property to a supposed thief, who had not formed the particular design to steal it; this latter person, taking it with felonious intent from the servant, commits not a larceny.5

Leach, 4th ed. 913, 2 East P. C. 494, 666; Rex v. Dannelly, 2 Marshall, 571, Russ. & Ry. 310; Reg. v. Johnson, Car. & M. 218. And see Reg. v. Williams, 1 Car. & K. 195.

1 Rex v. Bigley, 1 Crawf. & Dix C. C. 202.


* Rex v. Cassey, J. Kel. 62, 69; Rex v. Hawkins, 2 East P. C. 485. Denton's case, Foster, 108. But a burglar who enticed the occupant out of the house, the latter leaving the door open, was held not to be guilty of the offence in entering the open door fifteen minutes afterward, though had the entry been instantaneous the case would have been otherwise. The State v. Henry, 9 Ired. 463, Ruffin, C. J., dissenting. See ante, § 190.

* Rex v. Swallow, 1 Russ. Crimes, Grea. Ed. 792; ante, § 190.

The State v. Anone, 2 Nott & McCord, 27; The State v. Sonnerkalb, 2 Nott & McCord, 280.

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Dodge v. Brittain, Meigs, 84; Kemp v. The State, 11 Humph. 320; Dodd v. Hamilton, 2 Taylor, 31; The State v. Barna, 2 Taylor, 44.



$ 345 a. THE law extends its protecting care over the guilty and the innocent alike. And on this ground, for the protection of both innocent and guilty, we have the constitutional provision, already mentioned,1 against ex post facto laws.

§ 346. Natural justice forbids the infliction of punishment for what was not punishable when done. And this principle, we have seen,2 is established in the United States constitution, by the clause against ex post facto laws, as a rule binding on both the national and State legislatures. It extends, in interpretation, to the forbidding of any increase of the penalty after the act is performed; though not to a diminution of it. The rule, however, does not render void a statute providing a heavier punishment for the second commission of an offence than for the first, though the first took place before its passage; yet,

1 Ante, § 52, 53, 108.

2 Ante, § 52, 59, note, 105, 108; also Woodruff v. The State, 3 Pike, 285; Dupy v. Wickwire, 1 D. Chip. 237; Charleston v. Feckman, 3 Rich. 385; Baugher v. Nelson, 9 Gill, 299; Perry'v. Commonwealth, 3 Grat. 632; Commonwealth v. Phillips, 11 Pick. 28; Commonwealth v. Edwards, 9 Dana, 447; The State v. Dunkley, 3 Ired. 116; Woart v. Winnick, 3 Ñ. H. 473, 475; Fisher v. Cockerill, 5 T. B. Monr. 129, 133; Dash v. Van Kleeck, 7 Johns. 477, 488; Strong v. The State, 1 Blackf. 193, 196; Commonwealth v. Lewis, 6 Binn. 266, 271; Davis v. Ballard, 1 J. J. Marshall, 563, 570; Locke v. Dane, 9 Mass. 360, 363; Watson v. Mercer, 8 Pet. 88, 110; Ross's case, 2 Pick. 165, 170.

3 Ante, § 108.

Ross's case, 2 Pick. 165; Rand v. Commonwealth, 9 Grat. 738.

where both had occurred before, the consequence is otherwise.1

§ 346 a. In many of the States are statutes which provide a heavier punishment for a second or third conviction of an offence, than for the first. These statutes require no special consideration; but a reference to the authorities will be convenient. They do not apply where the first conviction was in another State, or in a foreign country.3

1 Riley's case, 2 Pick. 172; Ross's case, supra.


Ante, § 147; People v. Butler, 3 Cow. 347; Russell v. Commonwealth, 7 S. & R. 489; Scot v. Turner, 1 Root, 163; Newton v. Commonwealth, 8 Met. 535; Commonwealth v. Mott, 21 Pick. 492; Commonwealth v. Getchell, 16 Pick. 452; Phillips v. Commonwealth, 3 Met. 588; Plumbly v. Commonwealth, 2 Met. 413; Bump v. Commonwealth, 8 Met. 533; Kite v. Commonwealth, 11 Met. 581; Smith v. Commonwealth, 14 S. & R. 69; Commonwealth v. Phillips, 11 Pick. 28; Ross's case, 2 Pick. 165; Riley's case, 2 Pick. 172; Evans v. Commonwealth, 3 Met. 453; Seymour's case, 14 Pick. 40; Rand v. Commonwealth, 9 Grat. 738.

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§ 347. We have seen,1 that the criminal law has a twofold purpose; namely, the protection of the public and of individuals. The former branch will be discussed in this chapter; the latter, in the chapter next following.

§ 348. The human race is made one family by force of common interests and sympathies. No member of it suffers without creating suffering in the rest, though the amount may be too small to be noticeable. But a plainer proposition is, that every injury to the public at large is an injury to each individual.2 Yet the individual injury may be small; and, small or great, if it is common to the whole community, affecting no particular person specially, the law would be unreasonable to allow each man to bring his separate suit, where all could alike complain, and overwhelm the transgressor with litigation. Therefore the rule is, that under such cir-.

1 Ante, § 325, 326.

See 4 Bl. Com. 5.

3 4 Bl. Com. 167.

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