15 Ga. App. 306 | Ga. Ct. App. | 1914
1. 5?he accused was convicted of the offense of assault with intent to rape. Personally we would have been better satisfied with the verdict if he had been found guilty only of assault and battery, for, so far as the circumstances in evidence disclose, he made no effort to effect an entrance into the sexual organ of the little girl, although (if the testimony in behalf of the State is credible) the offense committed by him was most loathsome and dastardly. Not only the physician who examined the child, and who was introduced in behalf of the defendant, but also the child’s grandmother, who was the main witness for the State, testified that the condition of the private organ was perfectly normal. The commission of such an offense as the evidence discloses is to us almost incredible, but with this we have no concern, because the jury were convinced that the testimony was true and that an assault of the. nature indicated by the evidence was in fact committed. The only question, therefore, upon which we are called to pass, so far as the testimony is concerned, is whether the evidence was sufficient to authorize the verdict of assault with intent to rape. The child was a mere infant, being only a little over four years of age, and, of course, she could not give consent. Being under ten years of age, a verdict of assault with intent to rape would clearly be authorized if sufficient evidence was adduced to authorize the conclusion that it was the defendant’s purpose to attempt to have sexual intercourse with her; and it is not necessary to show that the accused in fact went so far as to attempt physical entrance, or even so much as touched the private organ of the female assaulted; and the doubt in this case springs not so much out of proof of the absence of an actual attempt to enter the sexual organ of the alleged injured female, as from evidence which seems to indicate that the intention of the accused was not to have sexual intercourse at all, but rather to use the body of the child in an abnormal manner as a means of exciting his own passion; for while the sexual organ of the child was untouched, according to the testimony for the State, the child’s body and clothing exhibited such signs as demonstrated the completion of sexual excitement. There can be no doubt that the evidence authorized the conviction of the accused of an assault and battery, the horrible and disgusting details of which aggravated the enormity of the offense; but the jury could not merely for that reason legally convict the accused of assault with intent to rape.
The charge of the court to the effect that if the jury believed that Ithe defendant laid his hands upon the child in a lustful way, but without the intent to attempt sexual intercourse with her, he would only be guilty of assault and battery, is perhaps subject to verbal criticism, but not in any view was the language calculated to prevent the jury from plainly apprehending the principle announced.
3. The venue was sufficiently established by proof of the fact that a certain house was on a certain street, in the city of Valdosta, which was proved to be in Lowndes county, in which the accused was indicted and was being tried, and that the offense, if .committed at all, was committed at the house designated,
4. Complaint is made of the failure of the court to rule out the contents of a statement made by the child alleged to have been assaulted; the objection being based upon the ground that the testimony as to this statement was hearsay. The rule is well settled that on the trial of one charged with the offense- of rape, or assault with intent to rape, testimony as to the fact that the female alleged to have been assaulted made complaint may be received, merely for the purpose of rebutting the idea that the female consented to the criminal act; and it is equally well settled that the particulars of the complaint can not be given in evidence so as to disclose the
5. Exception is taken on the ground that the law of the State of Georgia does not define an assault with intent to commit rape, and, therefore, does not make such an offense a crime. There is no merit in this contention. As a matter of fact there are other offenses as to which, where an attempt to commit' the offense is not fully successful, or at least where the original intent is frustrated, it has properly been deemed by the General Assembly to be unnecessary to do more than define the main crime, or.crimé intended to be perpetrated, and to prescribe the punishment in case only an attempt was made to do the act, which, if it had culminated as intended, would have subjected the culprit to graver consequences. A code definition of the offense of assault with intent to rape is not necessary, because the offense of assault and the offense of rape are each clearly defined. And since an assault is an- attempt to commit a violent injury on the person of another, thus: including any attempt to do any unlawful act of violence injurious to the person of'another, it necessarily follows that an assault with intent to rape is an attempt to do to the alleged female the specific violent injury of having forcible sexual intercourse against her will.
7. While the evidence as to the defendant’s intent is not altogether satisfactory to us, we are not prepared to say that the evidence was not sufficient to authorize the conclusion reached by the jury upon that point; and since the trial was free from error, and the verdict is approved by the trial judge, the judgment refusing a new trial will not be reversed.
Judgment affirmed,