Page:Harvard Law Review Volume 8.djvu/333

317 T CONSENT IN THE CRIMINAL LAW, 317 CONSENT IN THE CRIMINAL LAW. HIS subject divides itself naturally into two parts : First, what is consent? Second, what is the effect of consent? I. It is not always clear at first sight what act is consented to, or how far a knowledge of all the circumstances is necessary for an effectual consent. A hands B a gold coin, thinking it a silver one : has he consented to part with the gold coin? Or, seeing what he takes to be a pasteboard box upon the sidewalk, he kicks it, and finds it a brick: is the consequent pain in his foot inflicted with his consent? The answer to these questions is not to be found (as jurists have too often tried to find it) upon the surface of a single case; a comparison of many authorities is necessary for a satis- factory solution. It will not do to depend, as is often done, on the maxim, " Fraud vitiates consent." Fraud, it is true, does often vitiate consent, but this is a statement as to the effect of consent, not as to its existence ; fraud does not negative consent. Consent exists, however acquired ; and if we say there is a con- sent that fraud vitiates, we have solved the present question. The first difficulty to be met may best be suggested by a com- parison of two cases. In the first, a young man gave a girl a fig into which he had put a poisonous powder ; the girl ate the fig, and was injured by the powder.^ In the second, one who asked the loan of a shilling was by mistake handed a sovereign, which he took in ignorance of the mistake.^ What consent, if any, was given in the two cases? Now, it seems to me quite clear that in the former case the girl consented to take one thing, — a fig, — and did take two things, — fig and poison. The consent, then, did not cover the poison ; she was given that in addition to what she consented to receive. As the case stood, poison had been administered to her without her consent. In the second case, it seems that there was consent to give and to take a coin. The parties surely consented to pass something, and the coin was the only thing in question. In the same way, if, instead of a fig, in the former case the girl had 1 Com. V. Stratton, 114 Mass. 303; reprinted in my Cases on Criminal Law, 451. 2 Reg. V. Ashwell, 16 Cox, C. C. i ; 16 Q. B. D. 190; Cas. Crim. Law, 566.