Carter v. State
35 Ga. 263
Ga.
1866
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Lumpkin, C. J.

That the prisoner is guilty of an assault, is clear; for he was in the bed, holding the arm of the girl by her wrist, without her consent or permission, and, as she called for help so soon as she awoke and found him in that position, we may say forcibly and against her will. And the only *265question is, the intent with which it was done; and this invites a further inquiry, viz., how far the accused must go before this intent is established? Here it is certain, from the position of the parties, that the negro intended sexual connexion, forcibly or by consent. This was his intent. There is not a particle of proof to show that he expected it ■ to take place by the consent of the girl. Was it not legally inferable that the intent was to gratify his lust forcibly? There is no evidence of any amorous manipulation with her person, hut when she awoke, he had her by the wrist. Were the jury warranted in inferring, from the evidence, that the intent was to commit a rape ? I ask, how far should one go to consummate this crime? If a man is found in the bed of a woman at an unseasonable hour of the night, and wakes her up by demonstrations such as were proven in this ease, may he not be convicted of this intent as well as any other ? and is it not more likely to he true than any other? As to the proof of the alibi, we do not think it amounts to much.

Judgment affirmed.