Page:Harvard Law Review Volume 8.djvu/334

318 3l8 HARVARD LAW REVIEW. received a piece of poisonous substance in the shape of a fig, supposing it to be a fig, she would have consented to receive that substance.^ In these cases consent exists, though given under a misapprehension. Cases may be imagined near the hne exceed- ingly hard to decide. Suppose in the course of a ball-game one player throws to another a ball to which is attached a dynamite cartridge, there is clearly no consent to catch the cartridge, whether it is attached outside or inside the cover. On the other hand, if such a cartridge alone is thrown, and one sees and voluntarily catches it, there is consent to receive it, in spite of the mistake. But if the whole interior of a ball is taken out, and the cover filled with dynamite, a jury may have a difficult question to solve. For if there is but one thing, — a ball of dynamite, — there is consent to receive it, the party having consented, as is agreed, to catch something. If there are two things, — a ball plus dynamite, — there is no consent to receive the dynamite. This is the sort of question which a jury is much better fitted than a court to answer; for, in the nature of things, the decision in one set of circumstances ought not and cannot prejudice the decision of a similar question later. The only general statement to be made is that if more things were done than were consented to, the additional things were done without consent, — which seems true enough mathe- matically, but a lame and impotent conclusion for so labored an argument. The triteness of the conclusion is admitted; the ne- 1 The judges who favored conviction in Reg. v. Ash well were much confused on this point. Thus, Cave, J., said: " In order that there may be a consent, a man must be under no mistake as to that to which he consents ; and-I think, therefore, that Ash- well did not consent to the possession of the sovereign until he knew that it was a sovereign." Lord Coleridge said : " There was no delivery of the sovereign to the prisoner by Keogh, because there was no intention to deliver, and no knowledge that it had been delivered. ... In good sense, it seems to me that he did not take it till he knew what he had got. ... I can see no sensible or intelligible distinction between the delivery of a bureau not known to contain a sum of money, or a purse, and the delivery of a piece of metal not known to contain in it 20s." The true view was expressed by Cox, Serjeant, in Reg. v. Jacobs, 12 Cox, C. C. 151 (a case utterly over- looked in Ashwell's case) : " He intended to give the prisoner the particular piece of coin he held between his fingers, although he was mistaken as to the nature of that coin. At the instant of its passing from the fingers of the prosecutor to the hand of the pris- oner, he intended to give, and the other intended to receive, the coin so held." As Smith, J., said, in Reg. v. Ashwell, the prosecutor " intended to deliver the coin to the prisoner, and the prisoner to receive it. The chattel, namely, the coin, was delivered over to the prisoner by its owner, and the prisoner received it honestly. He always knew he had the coin in his possession after it had been delivered to him. The only thing which was subsequently found was that the coin delivered was worth Zifid, instead of izd., as had been supposed."