CONSENT IN THE CRIMINAL LAW. 319 cessity of the argument, in view of the authorities, though lament- able, is patent. Many applications of this doctrine are suggested by the cases. For instance, consent to give and take a desk does not include consent to give and take money, or anything else concealed in the desk, and possession of a thing so concealed does not pass with the desk ; ^ though consent to give and take a desk, and whatever it contained, would cover all the contents, whatever they might be. So where a sealed envelope is given, there is consent to take its ordinary contents,^ since an envelope implies an enclosure ; but if it contained not only a letter, but also a bit of gold that had ac- cidentally fallen in, there would be no consent to take the gold. So where one was driving a herd of cattle, and a strange beast joined the herd without being noticed by the drover, there was no consent to take the beast ; but if the drover noticed the beast near the herd, and drove it among the others, thinking it one of the herd, he consented to take it, though the consent was induced by a misapprehension, and thereafter he was in possession of the beast.^ The same considerations should cover the case where a diseased man has connection with his wife. The marital consent covers the connection, but not contact with the virus, a foreign substance conveyed to the wife without her consent, like the poison in the figs.* 1 Merry v. Green, 7 M. & W. 623 ; Cas. Crina. Law, 548 ; Robinson v. State, 11 Tex. App. 403.
- Reg. V. Flowers, 16 Cox, C. C. 33 ; Cas. Crim. Law, 574. And see Rex v. Muck-
low, I Moody, 160; Cas. Crim. Law, 547. 8 See Reg. v. Finlayson, 3 New South Wales Sup. Ct. 301; Cas. Crim. Law, 565; Reg. z/. Riley, 6 Cox, C. C. 88; Cas. Crim. Law, 591. " - . " = V^
- This point was much debated in the case of Reg. v. Clarence, 16 Cox, C. C 511 ;
22 Q. B. D. 23 ; Cas. Crim. Law, 438 ; and finally decided adversely to the position I have taken. Wills, J., for the majority of the court, said, in the course of his opinion : " That consent obtained by fraud is no consent at all is not true as a general proposi- tion, either in fact or in law. If a man meets a woman in the street, and knowingly gives her bad money in order to procure her consent to intercourse with him, he ob- tains her consent by fraud; but it would be childish to say that she did not consent. . . . To separate the act into two portions, as was suggested in one of the Irish cases [Hegarty v. Shine, L. R. 4 Ir. 288 ?], and to say that there was consent to so much of it as did not consist in the administration of an animal poison, seems to me a subtlety of an extreme kind. There is, under the circumstances, just as much and just as little consent to one part of the transaction as to the rest of it. No one can doubt that in this case, had the truth been known, there would have been no consent, or even a distant approach to it. I greatly prefer the reasoning of those who say that because the consent was not to the act done, the thing done is an assault. If an assault, a rape also, as it appears to me." What seems to me a far sounder argument is well put by 43
