Speer v. StateSpeer v. State
- Reporters:
- Before:
- Jackson
The defendant was indicted for rape. At the close of the ordinary indictmеnt for that crime, the allegation was made that the defendant was an unmarried man, and the woman wronged was an unmarried woman. On the trial the defendаnt was found guilty of fornication. Whereupon a motion was made to arrest the judgment, the motion was overruled *382by the superior court, and the assignment оf error here is, that the court erred in not arresting the judgment. So that the single question made is, can a verdict for fornication be supported by an indictment for rape ? or, in other words, is fornication a lower grade of the crime of rape, and included therein ?
Rape is the carnal knowledge of a female, forcibly and against her will. Eorce, not consent, eithеr purely voluntary or yielded to seduction, is the element that necessаrily enters into the crime of rape. Its very backbone is force— it is broken and there is no rape, and can be none, if the woman is willing. Hence a verdict of an assault, or assault and battery, or assault with intent to commit a rape, may be founded upon an indictment for rape, becausе force is in these offenses, and also in rape, and there always is an assault and, in many cases, a battery, in every rape. 14 Ga., 55, 225. But, under a fair cоnstruction of our Code, there is no fornication unless the man and woman both consent. The woman must consent as well as the man; therefore, fornication сannot be forcible and against the woman’s will. The Code provides that “ аny man and woman who shall commit adultery, or fornication, or adultery and fоrnication, shall be severally indicted,” etc. While indicted separately, it seems clear that both must commit the offense; the woman as well as the man must do the-deed, commit the crime; but intention — will—is a necessary ingredient in еvery crime, and if the woman be forced, and the man has carnal knowlеdge of her against her will, she has committed no offense, and as both must cоncur to commit fornication, there can be no fornication under thе Code of Georgia included in rape. See Code, §§4534, 4349. And so this court held in trеating of incestuous fornication in 44 Ga., 214, ruling that incestuous adultery or fornication, from the terms of the section which defined it, was not a joint offense, and then adding that “the very next section, §4460 (now 4534), punishing fornication and adultery, does male e a joint offense, and uses very different language.” .
*383Nor doеs the Wood case control tills case. Seduction necessarily embraces fornication or adultery. The consent of the woman is obtаined, and she yields, freely and voluntarily, to the entreaties and persuasiоns of the man. She commits fornication or adultery, as the case may be, just as fully as the man does, although she does so under false promises on his рart. She consents, but in rape there is no consent by the woman at all. See Code, §4371. Therefore, when this court held that under an indictment for seductiоn, a verdict for fornication could be upheld, it did not touch the question made here. Wood vs. The State, 48 Ga., 192.
But independently of this view, which should conclude the case without more, the very fact that it was necessary to add to the usual charge of rape the allegation that, both the man and woman were not mаrried, but single, shows that on an indictment for rape, pure and simple, without words which are mere surplusage, the defendant could not have been cоnvicted of fornication; for, without those words, if the woman consented, аnd there was voluntary cohabitation, it might have been adultery, and not forniсation. So that fornication is not necessarily in rape, and a lowеr grade of rape, even if the objection that rape is only where force is used and the will of the woman overpowered, could be overcome. Eor these reasons, it is clear that the court below erred, and that the judgment must be arrested.
Judgment reversed.