152 Ga. 320 | Ga. | 1921
1. The sole question for consideration is whether the evidence was sufficient to support the verdict finding the defendant guilty of rape. The act of 1918 (Acts 1918, p. 259), making it unlawful for a person to have sexual intercourse with any female child under the age of fourteen (14) years, unless such person shall have previously become lawfully married to such female child, has no relevancy to the case, because the injured female was not “ under ” the age of 14 years, she being within two months of 15 years of age at the time of the alleged injury.
Bape is the carnal knowledge of a female, forcibly and against her will. Penal Code, § 93. As it involves force upon the part
In the ease of Jones v. State, 90 Ga. 616 (16 S. E. 380), the accused was charged with the offense of seduction. One contention made by the defense was that if the evidence showed any offense it was rape. In reviewing the judgment denying a new trial, this court entered into an elaborate discussion in the course .of which it was said that: “Sexual intercourse resulting from seduction must necessarily be committed and accomplished with the consent of the female. This is an essential and indispensable element of this particular crime. Kape, being the carnal knowledge of a female forcibly and against her will, necessarily implies the entire absence of consent on her part. It follows, plainly enough and without argument, that a rape cannot be made the basis of a prosecution for seduction. The two offenses are so totally different, they cannot be confused, nor can one of them by any possibility, legal or otherwise, be substituted for the other. People v. Brock (Mich.), 31 N. W. Rep. 585.”
In Mathews v. State, 101 Ga. 547 (29 S. E. 424), the girl was 16 years of age. In the course of the opinion it was said by Simmons, C. J.: “ Mathews was indicted for the offense of fornication and adultery, and convicted. The facts are set out fully in the official report. It is contended by the accused that under these facts the verdict was contrary to law and the evidence; - that if any crime was committed, according to the testimony, it was rape, and not fornication and adultery. The evidence, in brief, shows that Mathews had employed a girl as his clerk; that she did work for him at her father’s house; that he boarded there; that one morning after breakfast, while her father and mother were absent, he and the girl were together in the room of the accused; that he took hold of her person and attempted to throw her upon a lounge; that she resisted; and that he finally forced her to consent,’ and had sexual intercourse with her. He made no threats; there was no fear or intimidation, 'and the only violence used, as far as appears in the record, was throwing her upon the lounge. There were no bruises upon' her person, her clothing was not torn,
In Taylor v. State, 110 Ga. 150 (35 S. E. 161), it appears that Taylor was convicted of the offense of incestuous adultery alleged to have been committed with his stepdaughter who, as the record 'of file in this court shows, was 18 years of age. In the course of the opinion it was said by Simmons, C. J.: “ In portions of her testimony Miss McGuire stated that she had never consented to the illicit intercourse with Taylor, that in each instance it occurred against her will, and that she was forced to submit to his lustful embraces. Upon this testimony the court was requested in writing to charge the jury that if Taylor had carnal knowledge of Miss McGuire forcibly and against her will, the offense was rape and not incestuous adultery. This request was properly refused.; for, taking the testimony of Miss McGuire as a whole, it is obvious that, if her testimony as to the sexual intercourse with the accused is true, she in fact consented to it, so doing however with that reluctance and disinclination-which would naturally be felt by any young girl in sustaining such relations with her mother’s husband.”
In Cheney v. State, 109 Ga. 503 (35 S. E. 153), the defendant was convicted of rape upon a gud 12 years old. The judgment of the trial court refusing a new trial was reversed, because “ The evidence as a whole was entirely insufficient to establish the guilt
If the female consent to the sexual intercourse, it is not rape, and she may express her consent by her conduct at the time of the intercourse. Where her conduct is such as to imply assent, no rape is committed, even though the female may verbally proclaim unwillingness to engage in the act of intercourse. Another part of the offense is force upon the part of the accused, exercised against the female. In Vanderford v. State, 126 Ga. 753 (55 S. E. 1025, it was said that “ Force is an element of the crime of rape, but it may be exerted not only by physical violence but also by threats of serious bodily harm which overpower the female and cause her to yield against her will.” In the course of the opinion this court quoted with approval from Bailey v. Commonwealth, 82 Va. 107 [3 Am. St. R. 87], where it was said: “ The law requires that the unlawful carnal knowledge shall be against her will. She must resist, and her resistance must not be a mere pretense, but must be in good faith. She must not consent. If she consent before the act, it will not be rape. But as to this consent, we may observe that it must be a consent not controlled and dominated by fear. . . A consent induced by fear of bodily harm or personal violence is no consent; and though a man lay no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, he is guilty of rape by having the unlawful intercourse.” In considering the question of consent and fear upon the part of the female, it is proper also to take into consideration her age, mental capacity, and relation if any to the accused. In Simmons v. State, 99 Ga. 699 (27 S. E. 755), which occurred prior to the act of. 1918, supra, raising the age of consent, the original record in. this court shows that the injured female was a girl eleven years of age. She lived with her father at the residence of the accused at the time of the alleged offense. The defendant was convicted, and this court reversed the judgment refusing a new trial, holding: “ The indictment being for
In the case under consideration, the injured female, being the stepdaughter of the accused was nearly fifteen years of age and over the age of consent, as hereinbefore stated. She appears from her testimony to have been of average intelligence and fully competent to comprehend the nature of the act. Her testimony is set out at length in the statement of facts, and it is unnecessary to repeat it here. It is sufficient to say that she did not, at the time, utter a word of protest or attempt any act of resistance, nor did the accused make any threat or do any act to excite her fears or in any manner prevent her from crying out or making physical resistance, or do anything to prevent her from reporting the matter after the occurrence. Examination of the evidence carries the impression that if the defendant had intercourse with the girl it was entirely consensual. Her testimony that her fear of the accused caused her to remain passive or irresistant, and to fail to report the occurrence earlier than she did, must be weighed in the light of the conduct of herself and the accused and other attendant
Judgment reversed.