6 S.E.2d 795 | Ga. Ct. App. | 1940
The evidence did not point with a greater degree of certainty to an intent to have carnal knowledge of the female than it did to frighten her, or to be a "Peeping Tom," or to do some other act. The State did not carry the burden of proving the defendant guilty of assault with intent to rape; for if his conduct "points to one with as great a degree of certainty as another, that which is the least heinous will be presumed to have been intended. This follows logically from the presumption of innocence which the law raises in favor of a person charged with crime." Dorsey v. State,
The three girls, ages eleven, nine, and eight, were wading in an ankle-deep creek near the home of their kinspeople. A kinsman was hoeing his crop about one hundred yards away, in full sight of the girls and the defendant. The fact that the girls, being frightened upon seeing the defendant, ran to the kinsman but immediately thereafter returned to their wading, and the further fact that there were three of them thus wading, and the defendant knew that the kinsman was in sight and in calling distance of the girls, and that it was necessarily obvious to the defendant that if he had seized and gagged one of the girls the other two would necessarily have given the alarm and brought the kinsman to the rescue, and the further fact that the girls, without being accompanied by their kinsman, returned to the creek and began looking for the defendant, would indicate that they had arrived at the conclusion that the defendant was not attempting to do them serious bodily harm. The Hooper girl testified: "We then went to where Mr. Hunt was, and then we went back down there, and Elsie crossed the footlog and I said, `I'm going to throw a rock down there,' and *575
she said, `You better not, for if it's anybody else you are liable to hurt them,' and we went around there again, and Mary Helen Simms went with her, and didn't see anybody, and I went down below the footlog and see if I could see anybody, but he looked like he was trying to get away, and we all screamed and ran. He was in three or four feet of me when I last saw him. After we started out we ran toward Mr. Hunt. He called us bad words. He called us `black s. o. a. b.' All of this was in Jackson County." In Davis v. State,
The evidence is not sufficient to prove the corpus delicti, nor does the evidence either by the defendant's statement to the deputy sheriff that "he just as well do the same thing [plead guilty] so he could get out of there [jail]," or his statement to the bailiff that "he went over to Falkner's to get them to chop cotton, and decided *576
he would go down to the creek and fish a while, and those children was down on the creek, and they come alarmed at him some way or `nother, and he said to himself he better get on out from down there before some of those white people decided to do something to him," carry the burden of showing beyond a reasonable doubt that he attempted to have carnal knowledge of Elsie Lois Short, as alleged in the indictment. Pickett v.State,
Judgment reversed. Broyles, C. J., and Guerry, J., concur.