106 Ga. 365 | Ga. | 1899
Lead Opinion
Fletcher Jones was convicted of rape; and upon his motion for a new trial being overruled, he excepted. In the motion for a new trial complaint is made of the .following parts of the judge’s charge to the jury, viz.: “Between the ages of ten and fourteen, it would depend entirely upon her physical and mental development. To illustrate: cohabitation with a female under the age of ten years would be rape. She could not give her consent to the act of cohabitation; between the ages of ten and fourteen she can consent, if she is capable of consenting; if her mental and physical development is such that she is incapable of consenting, then her cohabitation with a person would be rape. . . If her physical and mental development was such that she could not consent, and you further find from the evidence that he cohabited with her, then such offense would be rape. . . You will look to the entire surroundings, the age of the person alleged to have been assaulted, her conduct then and there, her conduct then and since,
In .the case now under consideration, the evidence showed. that the girl alleged to have been ravished was between twelve- and thirteen years old at the time the accused' had carnal ■ knowledge of her person, and lacked several months of'being.' thirteen at the time the case was tried! "We think, therefore, that the rulings in the three cases above cited were clearly applicable to the facts of this case. It is contended by the plaintiff in error, that no evidence in reference to her mental and physical development was introduced, and that it was therefore erroneous for the court to charge the jury as above set forth. An examination "of the record shows that evidence as to her physical development was introduced; for her mother testified that the girl had “never had her monthly sickness.” The girb was the main witness for the State, and as such was examined and cross-examined in the presence of the jury. The jury had . the right, in forming an opinion with reference to her capacity • or want of capacity to consent to sexual intercourse, to take into consideration facts discovered by their own observations of the girl herself, her apparent physical development, her manner of testifying, and the degree of intelligence manifested by her while being examined as a witness. Certainly neither the development of her mind nor that of her body could have been greater ■ at the time when th.e testimony showed thatthe alleged rape was . committed than it was when the-jury saw her and heard her • testify. Owing to the shortness of the interval between the com- ■ mission of the act by the defendant and. lien appearance before
Judgment affirmed.
Dissenting Opinion
dissenting. We think the •evidence in this case, taken all together, shows too strongly both physical and mental capacity on the part of the female to consent to sexual intercourse to warrant a finding to the contrary. We also think that the evidence, as a whole, shows that she did not really resist the accused, and that her conduct •amounted to consent. For these reasons, we are of the opinion that the verdict was contrary to law, and should be set aside.