R v Day
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1841 |
| Date | 01 January 1841 |
| Court | High Court |
English Reports Citation: 173 E.R. 1026
IN THE COURTS OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
Referred to, R v. Hughes, 1845, 1 Cox. C C. 247
(Crown Side) before Mr Justice Coleridge. regtna v. day. (On an indictment for attempting to carnally know and abuse a girl under ten years of age, with a count for a common assault. The attempt was proved, but it could not be shewn that the child was under ten years of age, and it also appeared that no violence was used by the prisoner, and no actual resistance made by the girl:-Held, that although consent on the part of the girl would put an end to the charge of assault, yet that there was a great difference between consent and submission, and that although, in the case of an adult, submitting quietly to an outrage of this kind would go far to shew consent, yet, that in the case of a child, the jury should consider whether the submission of the child was voluntary on her p£fft, or was the result of fear under the circumstances in which she was placed.) [Referred to, R v. Hughes, 1845, 1 Cox, C C. 247 ] Assault.-The indictment contained two counts, the first of which charged the prisoner with having on the llth [723] of December, 1840, attempted to carnally know and abuse Eliza Massey, a girl under ten years old The second count was for a common assault. With respect to the age of Eliza Massey, she herself stated that she was ten years old an the 16th of January, 1841. Her mother was at home ill, and therefore could not attend the trial, and her father proved that Eliza Massey was not born in wedlock, and that he could not precisely state the time of her birth, as he was at that time at werk at some distance from the place at which the mother was ; and with respect to the assault it was proved by Eliza Massey, that, at about seven o'clock in the evening of the 17th of December, 1840, she was coming up Maidenhead Street, when she met the prisoner, who accompanied her up a dark lane, which was on her road home ; that there he, made an attempt on her, without any violence on his part, or actual resistance on hers ; and that on the same evening she told her mother what had happened. J. J. Williams, for the defendant, submitted that the first count could not be sustained, there not being sufficient evidence that the prosecutrix was under ten years af age at the time the offence was committed. trespass thereon or therein shall have been previously served, by or on behalf of the owneir or...
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...every consent involves a submission, but it by no means follows that a mere submission involves consent: per Coleridge J. in Reg. v. Day, 9 C. & P. 722, 724.” A little later, Dunn LJ said, “In addition to the general direction about consent which we have outlined, the jury will probably be ......
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