220. Consent Induced by Fraud.

Whether consent to an act of force will prevent it from being an assault and battery, when the consent is induced by fraud, is not clear, and the decisions are conflicting. It is no doubt safe to say that if a man or woman consents to an act, understanding its nature, the consent will prevent the act from being an assault and battery, notwithstanding it is induced by fraud.128 But where a person is induced to consent to an act of a particular nature, and the act done is of a different nature, the consent is no defense, 129 Thus, where a young woman, though of an age to be competent to consent to sexual intercourse, submitted to intercourse with a physician by whom she was being treated, but was ignorant of the nature of the act, believing in good faith, as he represented, that he was treating her professionally, it was held that he was guilty of an assault. Wilde, J., said that what the girl consented to "was something wholly dif ferent from that which was done, and there

128 Reg. v. Clarence, 16 Cox, C. C. 511, 22 Q. B. Div. 23, Beale's Cas. 438.

129 Reg. v. Case, 4 Cox, C. C. 220, Beale's Cas.

fore, that which was done was done without her consent."130 If a person by fraud induces another to take a poisonous or otherwise deleterious drug, in ignorance of its nature, and injury results, the consent does. not bar an indictment for assault and battery, 131

There has been a difference of opinion as to whether a man who has intercourse with a woman with her consent, and communicates a venereal disease, is guilty of an assault because of her ignorance of the fact that he is diseased.132 By the weight of au

130 Reg. v. Case, 4 Cox. C. C. 220, Beale's Cas. 435.

So, in Rex v. Rosinski, 1 Mood. C. C. 19, it was held that, for a physician to make a female patient strip naked, by pretending that he could not otherwise judge of her illness, and taking off her clothes himself, was an assault.

In Rex v. Nichol, Russ. & R. 130, a school master who took indecent liberties with a female scholar, without her consent, though she did not resist, was held guilty of an assault. See, also, Reg. v. Lock, L. R. 2 C. C. 10.

131 Com. v. Stratton, 114 Mass. 303, 19 Am. Rep. 350, Beale's Cas. 451.

132 That it was an assault was held in Reg. v. Bennett, 4 Fost. & F. 1105, and in Reg. v. Sinclair, 13 Cox, C. C. 28. But in a later case the con

thority, a man who has intercourse with a woman with her consent by fraudulently personating her husband is not guilty of rape, and,, where this is the case, one who attempts to do so is not guilty of an assault with intent to rape.' 134

133

II. MAYHEM.

221. Definition.-Mayhem at common law is the violently depriving of a person "of the use of such of his members as may render him the less able, in fighting, either to defend himself or to annoy his adversary."135 The offense has been extended by statute so as to include other injuries.

222. Nature of the Offense.

As this definition shows, whether or not an injury was mayhem at common law did not depend so much upon whether the injury was a serious one or not, as upon the

trary was held, in the case of husband and wi e. by nine judges out of thirteen. Reg. v. Clarence, 16 Cox, C. C. 511, 22 Q. B. Div. 23, Beale's Cas. 438. 133 Post, § 297.

134 Wyatt v. State, 2 Swan (Tenn.) 394; State v. Brooks, 76 N. C. 1.

135 4 Bl. Comm. 205. "Such hurt of any part of a man's body, whereby he is rendered less able, in fighting, to defend himself, or to annoy his adversary." 1 Hawk. P. C. c. 15, § 1, Beale's Cas.

character of the member injured. Cutting off or disabling or weakening a man's hand, or finger, or foot, or striking out his eye or a fore tooth, were mayhems at common law, but it was not mayhem to cut off his ear or nose, as this did not weaken, but merely disfigured him.136 Castration is mayhem at common law.1 In most states this offense has been extended by statute to include injuries merely disfiguring a person. 138 Consent of the person maimed is no defense. If a man procures another to cut off his hand, both are guilty.139

137

223. Intent-Malice.

Both at common law and under the statutes, the injury must be done willfully and maliciously;140 but it is not necessary that

136 4 Bl. Comm. 205; 1 East, P. C. 393; Reg. v. Hagan, 8 Car. & P. 167.

137 4 Bl. Comm. 206.

138 See State v. Girkin, 1 Ired. (N. C.) 121; Godfrey v. People, 63 N. Y. 207; State v. Skidmore, 87 N. C. 509; State v. Jones, 70 Iowa, 505.

139 Wright's Case, Co. Litt. 127 a, Beale's Cas. 145.

140 State v. Girkin, 1 Ired. (N. C.) 121; Molette v. State, 49 Ala. 18; Werley v. State, 11 Humph. (Tenn.) 172; Terrell v. State, 86 Tenn. 523.

it shall be premeditated. It may be inflicted in a sudden affray.141 To injure another, however, in necessary self-defense against an attempt to kill or do great bodily harm, is not mayhem.142 Some of the statutes expressly require an intent to inflict the particular injury,143 and some require lying in wait, or some other act showing premeditation and deliberation.144

III. FALSE IMPRISONMENT.

224. Definition.-False imprisonment is the unlawful detention of a person. Like an assault, which it generally includes, it is punishable as a misdemeanor at common law.145 In most states it is expressly punished by statute.

225. The Detention.

Both at common law, and generally under

141 State v. Simmons, 3 Ala. 497; State v. Girkin, 1 Ired. (N. C.) 121; State v. Jones, 70 Iowa, 505; State v. Bloedow, 45 Wis. 279; Terrell v. State, 86 Tenn. 523.

142 State v. Danforth, 3 Conn. 112.

143 See State v. Evans, 1 Hayw. (N. C.) 325; State v. Simmons, 3 Ala. 497; Mollette v. State, 49 Ala. 18; Slattery v. State, 41 Tex. 619; Davis v. State, 22 Tex. App. 45.

144 See Godfrey v. People, 63 N. Y. 207.

145 3 Bl. Comm. 127; 4 Bl. Comm. 218; Com. v. Blodgett, 12 Metc. (Mass.) 56; Campbell v. State, 48 Ga. 353.