the person injured is no defense,159 but this view is not sound.160 If the assault is committed under such circumstances as to constitute a breach of the peace, as in the case of a prize fight or affray, an indictment will lie, notwithstanding the consent, but the indictment in such a case should be for the breach of the peace, and not for the assault.161

As a rule, offenses against property, from their very nature, can only be committed in the absence of consent on the part of the person against whom they are committed. To constitute larceny, there must be a trespass in taking the property, and this cannot be where the owner freely consents to part with the property. It can make no difference that he consents for the purpose of afterwards prosecuting the party, and that the fact that he consents is not known to the other party.182

The same is true of robbery, to constitute

159 Com. v. Collberg, 119 Mass. 350, 20 Am. Rep. 328, Beale's Cas. 148; post, §§ 216, 217.

160 See Reg. v. Martin, 2 Mood. C. C. 123, Beale's Cas. 146; State v. Beck, 1 Hill (S. C.) 363, 26 Am. Dec. 190; Reg. v. Woodhurst, 12 Cox, C. C. 443; Reg. v. Day, 9 Car. & P. 722

161 State v. Burnham, 56 Vt. 445, 48 Am. Rep.

162 See People v. Hanselman, 76 Cal. 460, 9 Am.

which the property must be taken from the person or in the presence of another by violence, or by putting him in fear.163 And it is true, also, of burglary, in which there must be a breaking and entry.164

Statutory Offenses in Which Consent is No Defense. There are many offenses punished by statute in which consent of the person more particularly injured is no defense. Among these may be mentioned bigamy,165 incest,1 seduction,167 and carnal knowledge of girls under a certain age.'

168

151. Going beyond the Consent.

166

Consent can be relied upon as a defense only when the act was within the consent. Thus, when a man hands another goods, with the understanding that he may take them on paying for them, and the other runs off with

St. Rep. 238; Reg. v. Lawrance, 4 Cox, C. C. 438; post, § 318.

163 Connor v. People, 18 Colo. 373, 36 Am. St. Rep. 295; McDaniel's Case, Fost. C. L. 121, Beale's Cas. 152; post, § 376.

164 Rex v. Egginton, 2 Leach C. C. 913; Allen

v. State, 40 Ala. 334.

165 Post, § 459.

166 Post, § 460.

167 Post, § 464.

168 Post, § 298

them without paying, there is no such consent to part with the goods as will defeat an indictment for larceny.169 There is some difficulty and conflict of opinion as to the application of this principle, as we shall see at length in treating of larceny, assault, and rape.1

170

152. Persons Incapable of Consenting.

In any case, in order that the consent of the person injured may be a defense, he or she must have been capable of consenting. Thus, though want of consent is an essential element of rape, it is rape, even at common law, to have carnal knowledge of a girl under ten years of age, whether she consents or not, for the law considers that a child of such tender years has not sufficient capacity to consent to intercourse.171 The same is true of a woman who is insensible through sleep, drugs, drunkenness, or any other cause.172 In some states, statutes punish the carnal knowledge of girls, even when they are as old as eighteen years, whether they consent or not.173

169 Post, § 318 (c).

170 Post, §§ 220, 297, 318.

171 Post, § 298.

172 Post, § 295.

173 Post, § 298.

153. Consent Induced by Duress.

Consent induced by duress so great as to be sufficient to reasonably destroy free will is only apparent consent, and is no defense. Thus, consent of a woman to sexual intercourse, or of a man to part with his property, is no defense in a prosecution for assault, rape, robbery, or larceny, if the consent was induced by threats of death or great bodily harm.174 The degree of duress may be so slight as not to vitiate consent. The degree required will vary according to the act.175 154. Consent Induced by Fraud.

Whether fraud vitiates consent is not clear, and there is much conflict in the decisions. The question has arisen in prosecutions for assault, rape, and larceny, and will be considered in dealing with those crimes.176

VI. RECOVERY IN A CIVIL ACTION.

155. In General.-On a criminal prosecution, it is no defense that the person injured has recovered damages or been defeated in a civil action.

If an action is brought against a wrongdoer

174 Post, §§ 218, 296, 318(d), 370.

175 As to rape, see post, § 293. As to robbery. see post, § 370. As to larceny, see post, § 318 (d). As to assault, see post, § 218.

176 Post, §§ 220, 297, 318. See Reg. v. Williams, 8 Car. & P. 286; Reg. v. Case, 4 Cox, C. C. 220.

to recover damages for the wrong, a judgment either for the plaintiff or for the defendant is a bar to any further action between the parties for the same wrong. But when a tort is also a crime, neither a recovery by the party injured nor a judgment against him in a civil action will bar a prosecution by the state for the wrong and injury to the public. Thus, on a prosecution for larceny, or a kindred crime, the fact that the property has been recovered by the owner in an action of replevin, or that its value has been recovered in trespass or trover, is no defense. The same is true of prosecutions for assault and battery, libel, nuisance, etc.178 This rule is changed to some extent by statute.179

177

VII. SETTLEMENT AND CONDONATION.

156. In General.-In the absence of statutory provision to the contrary, a criminal prosecution is not barred by the fact of settlement with, or condonation by, the person injured.

A person against whom a tort has been com

177 Donohoe v. State, 59 Ark. 375.

178 See People v. Judges, 13 Johns. (N. Y.) 85; Foster v. Com., 8 Watts & S. (Pa.) 77; State v. Frost, 1 Brev. (S. C.) 385; State v. Stein, 1 Rich. (S. C.) 189; U. S. v. Buntin, 10 Fed. 730. 179 See State v. Blyth, 1 Bay (S. C.) 166.