324 HARVARD LAW REVIEW. thief to retain them in order to detect a receiver, the crime of re- ceiving stolen property cannot be committed as to the goods.^ In an analogous case, where one solicited goods by false pretences and obtained them, but the owner when he gave them up knew of the falsity of the pretence, the crime of obtaining by false pretences was not committed ; ^ and where defendant, in order to help a prisoner of war escape, took him in her carriage bey6nd the lines, but he had been allowed to go to the place by the military authori- ties in order to detect the defendant, the crime of assisting a pris- oner to escape was not committed.^ There is an exception to this doctrine in the anomalous case of larceny by trick. In such a case the owner consents to give up the goods, but the wrongdoer is held guilty of larceny because of his fraud in obtaining the consent. I have elsewhere stated certain objections to this doctrine, and have tried to show that it is of late growth, and founded on mistake.* What I have just said is an- other theoretical objection to it. Another exception, probably earlier established, is the doctrine of constructive breaking in burglary. According to this doctrine, burglary may exist without an actual breaking of the house, if the wrongdoer obtains entrance by fraud. Some of the earliest cases were cases of entry without consent of the owner of the house, under color of legal process,^ or of entry secured by frightening an inmate so that he opened a door,^ or of entry made into a door opened by an inmate, but not to let in the thief.'^ In none of these cases was the entry made by consent of the owner. But cases have been decided in the same way where consent to the entry was really obtained, though by fraud.^ These decisions, it is submitted, were erroneous. In some cases of criminal injury to individuals a lack of consent of the individual is not always a necessary element of the crime. Homicide, mayhem, and battery may be committed, though the individual injured consented to the injury. The reason for this is 1 Reg. V. Dolan, 6 Cox, C. C. 449; Cas. Crim. Law, 765; Reg. v. Villensky (1892), 2 Q. B. 597. 2 Reg. V. Mills, 7 Cox, C. C. 263 ; Cas. Crim. Law, 727. 8 Rex V. Martin, Russ. & Ry. 196; Cas. Crim. Law, 156. And see U. S. v. Adams, 59 Fed. 674.
- 6 Harvard Law Review, 244.
6 Farr's Case, Kel. 43 ; 3 Co. Inst. 64. •5 2 East, P. C. 486, and authorities cited. ■^ Le Mott's Case, Kel. 42. ^
- Cassey's Case, Kel. 62 ; Rex v. Hawkins, 2 Russ. Cr. 9.
