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times observe, that the reasons in the text are not the same which the judges have assigned in the decisions. It would occupy too much space, and serve but slightly any useful purpose, to pause and explain these differences as often as they arise. They are caused, in some instances, by my not thinking the reasons stated in the cases to be the true legal ones; and in other instances by my thinking, that, while they are good, those which the peculiar aspect of the discussion rendered it important to state in the text are good also. Frequently a legal doctrine—so beautifully harmonious is truth-may rest equally well upon any one of many distinct reasons.
WRONG OR CONSENT IN THE INJURED PERSON.
§ 340. WE have already seen, that, in civil jurisprudence, plaintiff to prevail must come into court with no just imputation on him of wrong in the particular matter about which he complains. But in criminal jurisprudence, the State complains; and, in theory of law, the State cannot be in the wrong; so that this doctrine applies not in criminal cases generally. Yet even in these cases, where a person asks of the court as a favor the privilege of wielding the criminal process for his own advantage, the rule will be applied to him. Therefore one cannot ordinarily have a criminal information against another who has injured him, unless free himself from blame in the matter, and prompt in the pursuit of the remedy.2 But the rule, in this respect, is to some extent otherwise when the injury is of a general and public nature.3
1 Ante, § 329, 330.
2 Anonymous, Lofft, 314; Rex v. Haswell, 1 Doug. 387; Rex v. Miles, 1 Doug. 284; Rex v. Jollie, 1 Nev. & M. 483, 4 B. & Ad. 867; Rex v. Dummer, Holt, 364; Reg. v. Saunders, 10 Q. B. 484; Rex v. Eden, Lofft, 72; Rex v. Hankey, 1 Bur. 316; Rex v. Draper, 3 Smith, 390; Reg. v. Harris, 8 Jur. 516; Rex v. Murray, 1 Jur. 37; Rex v. Symonds, Cas. temp. Hardw. 227; Rex v. Webster, 3 T. R. 388; Anonymous, Lofft, 272; Rex v. Larrieu, 7 A. & E. 277; Reg. v. Lawson, 1 Q. B. 486, 1 Gale & D. 15, 5 Jur. 387; Ex parte Beauclerk, 7 Jur. 373; Rex v. Dennison, Lofft, 148; Rex v. Wright, 2 Chit. 162; Rex v. Marshall, 13 East, 322; Rex v. Smith, 7 T. R. 80; Rex v. Bickerton, Stra. 498. And see Rex v. Burn, 7 A. & E. 190, 1 Jur. 657.
Rex v. Williams, 1 D. & R. 197, 5 B. & Ald. 595; Rex v. Haswell, 1 Doug. 387; Reg. v. Gregory, 1 Per. & D. 110, 8 A. & E. 907.
§ 341. It is therefore, in criminal jurisprudence, ordinarily no defence for a man who has done a wrong, that the person injured has done a wrong also, or been negligent or careless in respect to the same thing. This principle does not exclude, in every circumstance, consideration of the conduct of the injured person; because such conduct sometimes justifies legally the act of the other. For example, since a man may defend himself against an assailant, if, in such defence, in which he goes no further than the law allows, he maims the assailant, he is not legally guilty of the crime of mayhem.2 And in a case of false pretences, the New York court held, that the indictment will not lie where the complainant parted with his money under circumstances to have made the transaction criminal in him if the pretences had been true.3 Obviously a consent from one having no legal right to consent avails the prisoner nothing.*
§ 342. In these cases of wrong done by the injured person, and of consent by him to the real or apparent wrong committed on him by the other, the question of the effect of this matter depends not on the same principles which govern similar questions in civil jurisprudence, but on principles peculiar to the criminal law. For instance, if the consent or the injured person's wrong takes away the peculiar nature of the other's act, then such act ceases to be a crime. But no man, no power short of the legislative, can liceuse crime; no man's license, therefore, will justify him who commits it; and, a fortiori, no second person's sin will justify mine. More
1 Rex v. Beacall, 1 Car. & P. 310, 454; Rex v. Wellings, 1 Car. & P. 454; Reg. v. Longbottom, 3 Cox C. C. 439, 7 Law Reporter N. s. 379, and note on p. 381; Reg. v. Swindall, 2 Car. & K. 230; Reg. v. Williamson, 1 Cox C. C. 97; Reg. v. Holland, 2 Moody & R. 351; Rex v. Rew, J. Kel. 26; Hutton's case, 1 Swinton, 497.
2 Hayden v. The State, 4 Blackf. 546.
People v. Stetson, 4 Barb. 151. See Rex v. Beacall, 1 Car. & P. 454. But see Vol. II. § 383.
Riley v. The State, 16 Conn. 47.
over, there are injuries which no man may lawfully inflict on himself; and, to these, consent is of no avail. Thus a man may not take away his own life; and so, if another voluntarily takes it by his request, this other is guilty of murder, the same as if not requested.1 It is thus where death is inflicted in a duel. So likewise, it being the gist of the crime of mayhem that the injured person is rendered less able in fighting, no one may innocently maim himself; and, if one maims another at the request of the latter, both are guilty.4 There are some crimes, however, of such a specific nature that they cannot be committed where this unlawful consent exists; for, if a man should have carnal intercourse with a consenting woman not his wife, his offence would not be rape; because, although her consent, being unlawful, would not justify his act, yet rape is constituted only by a connection to which the woman yielded not her will.5
§ 343. But any injury which one has a right to inflict on himself may be inflicted by proxy, the agent he employs not being answerable. What a man may do in respect to his person and property, we shall not here discuss, further than to illustrate the doctrine of consent. He may give away his property; and therefore another who takes it by his permission commits not larceny. He may inflict self-torture, to a degree at least, though, as we have seen,7 he must neither
1 Rex v. Hughes, 5 Car. & P. 126. And see Reg. v. Alison, 8 Car. & P. 418; Rex v. Russell, 1 Moody, 356.
Rex v. Taverner, 1 Rol. 360, 3 Bulst. 171; Rex v. Rice, 3 East, 581; Reg. v. Young, 8 Car. & P. 644; ante, § 5.
3 Ante, § 194.
* Rex v. Wright, 1 East P. C. 396, Co. Lit. 127 a; People v. Clough, 17 Wend. 351, 352.
* Wright v. The State, 4 Humph. 194; The State v. Murphy, 6 Ala. 765.
& Dodge v. Brittain, Meigs, 84; Dodd v. Hamilton, Taylor, 31; The State v. Jernagan, 2 Taylor, 44. And see The State v. Chambers, 6 Ala. 855.
7 Ante, § 342.
maim nor kill himself: and so another who in good faith whips him at his request; or, with his consent, does any other act which under ordinary circumstances would amount to an 'assault and battery; commits no 'crime. But if in these cases the consent is obtained by fraud; or if the person from tender years or other cause is incapable of consenting; or if, without absolute fraud or actual incapacity, the will is overpowered, as by an array of force, or by the false pretence, the accused being a physician, that the act done is necessary in a course of medical treatment; the law deems that there was no consent. Still the majority of the English judges have held, that the peculiar offence of rape is not committed where a fraudulent consent is obtained, as where
2 Reg. v. Martin, 9. Car, & P. 213, 215, 2 Moody, 123; Reg. v. Meredith, 8 Car. & P. 589; Wright v. The State, 4 Humph. 194; Commonwealth v. Parker, 9 Met. 263; The State v. Cooper, 2 Zab. 52; Reg. v. Banks, 8 Car. & P. 574; Duncan v. Commonwealth, 6 Dana, 295. In an English nisi prius case the judge observed, that, if two go out to strike one another, and do so, it is an assault in both, and it is quite immaterial which strikes the first blow. Reg. v. Lewis, 1 Car. & K. 419. This observation is doubtless correct, applied to certain circumstances; as where the parties are in anger, and each intends to beat the other, allowing himself to be beaten as little as possible. Here neither can be said to consent to the blows he receives. So if they engage in a prize-fight there is a breach of the peace to which they cannot consent. Rex v. Perkins, 4 Car, & P. 537. And see Vol. II. § 41.
Reg. v. Saunders, 8 Car, & P. 265 Reg. v. Williams, 8 Car. & P. 286.1 4 Reg. v. Reid, 1 Den. C. C. 377, Temp. & M. 52, 3 New Sess. Cas. 405, 13 Jur. 68, 2 Car, & K. 957; Hays u. People, 1 Hill, N. Y. 351; The State v. Handy, 4 Harring. Del. 566; Reg. v. March, 1. Car. & K. 496; Davenport v. Commonwealth, 1 Leigh, 588. And see Reg. v. Banks, 8 Car. & P. 574; Reg. v. Martin, 9 Car. & P. 213.
Hays v. People, 1 Hill, N. Y. 351; Reg. v. Day, 9 Car. & P. 722; Rex v. Nichol, Russ. & Ry. 130,
Reg. v. Hallett, 9 Car. & P. 748.
Reg. v. Ellis, 2 Car. & K. 470;
Den. C. C. 580, Temp. & M. 318.
Reg. v. Case, 1 Eng. L. & Eq. 544, 1
And see Rex v. Rosinski, 1 Moody,
So also in Alabama, The State v., Murphy, 6 Ala. 765, 14, 2