Page:Harvard Law Review Volume 8.djvu/339

323 CONSENT IN THE CRIMINAL LAW. 32 j, tive consent in cases of indecent assault, similar to those already considered.^ It is also involved wherever a game is played that involves a hand-to-hand struggle. In a foot-ball game, for in- stance, each player consents in advance to such injuries as he may suffer, so long as they are inflicted by one acting within the rules of the game; but an injury caused by unfair play is not consented to.^ II. The existence of consent is a question of fact ; the effect of it purely a question of law. To the consideration of that question we now proceed. The injury redressed by every prosecution is an injury to the public. The consent of an individual that an act criminal in its nature should be done is therefore no defence to a prosecution. An act which consists of an injury to an individual may, however, be a criminal act only if done without the consent of the individ- ual. Of this nature are larceny, which consists in a taking against the will of the owner; rape, which is a connection with a woman without her consent; and simple assault, which cannot be com- mitted upon one who consents, since it involves fear or a menace of fear. The effect of consent in such cases, however obtained, must be to put an end to any question of crime. Thus, as we have seen, connection with a woman where her consent is obtained by fraud cannot be rape ; and an unsuccessful attempt to have connection with a girl below the age of consent cannot be a simple assault, if she in fact consents.^ The same ,thing must be true in larceny; a taking with the consent of the owner, however obtained, is not a taking invito domino, and is therefore no larceny. As we have seen, where the owner of goods really brings it about that they are larcenously taken, in order that he may detect the thief, there is no larceny, for the taking is with the owner's consent. So where the owner of stolen goods recovers them, but allows the well-known Carrier's Case (6 Harvard Law Review, 250). See Mr. Justice Ste- phen's comments on the latter case in Reg. v. Ashwell, supra. 1 See the language of Piatt, B., in Reg. v. Case, supra. This same principle was relied upon to support conviction, by Pigott, B., in Reg. v. Middleton, L. R. 2 C. C. 38 ; Cas. Crim. Law, 617, and appears to be the most tenable ground on which to put the case. The difficulty with it is one of fact. 2 See Reg. v. Bradshaw, 14 Cox, C. C. 83 ; Cas. Crim. Law, 146. V. People, I Hill, 351.
 * Reg. V. Martin, 2 Moo. C. C. 123. Contta, People v. Gordon, 70 Cal. 467 ; Hays