130 Ga. 15 | Ga. | 1908
1. Where the evidence showed that a rape had been actually committed, and there was nothing to indicate the perpetration of an assault not included in the crime of rape, the court properly omitted from its charge any instruction as to the law relating to the offense of assault with intent to commit a rape. Penal Code, §19; Johnson v. State, 73 Ga. 107 ; Welborn v. State, 116 Ga. 522 (42 S. E. 773). The testimony of a witness that the prosecutrix “said some one had attempted to assault her” was not -evidence authorizing a charge on the law of assault wijdi intent to commit a rape, as such testimony was merely hearsay and of no probative value, though it might have been considered on the question of impeachment of the prosecutrix, had the proper foundation been laid.
2. There was ample evidence submitted on the trial to show that the crime of rape had been committed on the person of the prosecutrix. at the time and place alleged in the indictment. She testified positively that the accused was the perpetrator of the crime, and there was evidence for the State tending to corroborate her testimony on this point. Under the State’s evidence there was, perhaps, also some question whether the prosecutrix was, immediately after the commission of the offense, so certain of the identity of the accused as the guilty party.
