58 Ga. App. 447 | Ga. Ct. App. | 1938
1. Special grounds 1, 2, and 3 of the motion for new trial are merely elaborations of the general grounds.
3. The accused was convicted of the crime of incest (having sexual intercourse with his own married daughter). The daughter’s testimony that such intercourse had frequently taken place was sufficiently corroborated by other evidence in the case. The contention of counsel for the defendant that the evidence for the State, if it showed any crime, made out a case of rape, and not one of incest, is without merit. While the daughter testified that the defendant forced her, against her will, to have intercourse with him, other portions of her testimony and other evidence in the case authorized the jury to find that she had reluctantly consented to the intercourse, and that the offense was incestuous intercourse, and not rape. As held by this court in Avery v. State, 12 Ga. App. 562 (77 S. E. 892) : “Even though the woman with whom an act of adultery is alleged to have taken place testifies that the accused had carnal knowledge of her person forcibly and against her will, a verdict finding the accused guilty of adultery and fornication, under an accusation charging that offense, will not be set aside, if the jury are authorized to infer from all the circumstances surrounding the transaction that the woman consented.” In Davis v. State, 152 Ga. 320 (110 S. E. 18), where the defendant was convicted of raping his fourteen-year-old stepdaughter, the Supreme Court reversed the judgment and 'said: “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. . . 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 her
Judgment affirmed.