21 S.E.2d 336 | Ga. Ct. App. | 1942
Lead Opinion
Unlawful intercourse with a woman whose will is temporarily lost from intoxication is rape.
There are three elements constituting this offense: (1) Unlawful assault; (2) Intent to have carnal knowledge of a female, and (3) forcibly and against her will. As to the first two there seems to be no dispute. Regarding the third, it is rape to have sexual intercourse with an imbecile female. Gore v.State,
As previously stated, we will not detail the evidence, but the whole setting as revealed by the evidence shows that the female was unconscious. Aside from the gruesome details, one witness testified: "They acted to me like they were all drunk, or they acted that way. I didn't see them drink anything. All of them acted that way." The sheriff, who was called and who arrived at the scene before the conduct of the accused terminated, testified: "Her clothing was just about as high as they can get. They would be up about that high [illustrating about the waist]. Her legs were exposed and her hips, not clear to her waist. They were exposed to up near the waist. Her condition with respect to drinking was apparently she had just waked up, the way I judge it. She had been drunk, she had that appearance." *633
To reverse the conviction under the evidence in this case would be, in our opinion, to hold that unlawful intercourse with a female who is unconscious from the use of intoxicating liquors is not rape. We have no quarrel with our colleague who interprets the evidence differently. The judge approved the verdict. We think this judgment should be affirmed.
Judgment affirmed. Broyles, C. J., concurs.
Dissenting Opinion
"In order to find a prisoner guilty of an assault with intent to commit rape, the jury must be satisfied that the prisoner, when he laid hold of the [woman], not only desired to gratify his passion upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part." McNair v. State,
There was no testimony that the woman resisted any of the advances of the white man or the negro, or that the defendant used force except such as was incident to raising up her clothing while she was apparently sleeping. The absence of all violence, and all evidence of any intention to use force, if necessary, to overcome the will of the woman, the time, the place, and all the circumstances, invest the charge with great improbability. However reprehensible was the conduct of the accused, the evidence is consistent with the desire on his part to have sexual intercourse with the woman in question, but without an intention to use force if necessary to gratify his desires. The guilt of the defendant is not to be inferred because the facts are consistent with his guilt, but they *634
must be inconsistent with his innocence. Dorsey v. State,
The sheriff testified that when he arrived at the semi-public place in question the woman's clothes were up about her waist or a little higher, and that she appeared to have been asleep and to have just waked up; that "she had been drunk, she had that appearance." The sheriff did not arrest her for being drunk, but arrested her for public indecency. It seems to me that it is entirely consistent with the evidence in this case that the sheriff was correct in his diagnosis of the matter. He testified that the defendant "was drinking some, but he wasn't drunk. Knox was about half way. About what I could call half drunk." He further testified that the husband was slumped under the steering wheel of the truck and that he was unconscious from drink. All four were in the cab of the truck.
I am not prepared to say that, when men and women engage in a drinking spree, the mere raising of a woman's clothes up to her waist, or perhaps higher, by one of the drinkers in the party, where there is no resistance on the woman's part, will authorize a jury to convict the accused of assault with intent to rape, where it is not shown that the woman was unconscious from drink or otherwise. The intent to use force, in case stupefaction should fail, is essential to this offense. As stated above, the woman did not herself *635 testify that she was unconscious at the time. However vulgar or indecent the acts of the parties might be, I do not think the State made out a case of an assault with intent to rape. "The particular criminal intent charged must be proved. It will not do to prove that the prisoner had that intent or some other, although the other may have been criminal; and especially if the other, although immoral, was not criminal." Dorsey v. State, supra. It may be that the evidence was sufficient to authorize a verdict of assault and battery, but that question is not now presented to us. I think the judgment should be reversed.