Opinion
13316.
JUNE 13, 1940. REHEARING DENIED JULY 12, 1940.
Rape. Before Judge Edwards. Franklin superior court. February 10, 1940.
L. S. Johnson and William Hall, for plaintiff in error.
Ellis G. Arnall, attorney-general, A. S. Skelton, solicitor-general, L. P. Webb, Duke Davis and C. E. Gregory, assistant attorneys-general, contra.
1. The verdict of guilty of rape, with a recommendation to mercy and a sentence of ten years imprisonment, was authorized by the testimony of the alleged victim, corroborated by other testimony.
2. While it is true that a female over fourteen years of age is presumed to possess sufficient mental capacity to intelligently consent to or dissent from an act of sexual intercourse, and that where in a rape case one of the contentions of the State is that a woman above that age did not possess such intelligence, the burden rests on the State to establish this fact ( Smith v. State, 161 Ga. 421 (2, a), 131 S.E. 163), still the court in this case having charged as favorably to the defendant as he could have any right to expect upon the degree of intelligence required of a female to give legal effectiveness to her consent, and having charged that the question of her mental capacity was one for determination by the jury under the evidence, and having further charged that it was incumbent upon the State to prove every material allegation in the indictment, and that the defendant entered upon the trial of the case with the presumption of innocence in his favor, and that such presumption remained with him throughout the trial unless and until it was overcome by proof on the part of the State establishing his guilt beyond a reasonable doubt, the judge did not err in failing to charge on his own motion and without any request as to the burden of proof upon such specific question relating to the mental capacity of the female. McCombs v. State, 148 Ga. 304 (2) ( 96 S.E. 385).
3. "In order `to ascertain whether a particular part of a charge, excepted to as expressing an opinion on the facts, is fairly liable to such exception, the whole charge, written and in the record, may be considered.' . . It is only `when the charge of the court assumes certain things as facts, and is in such shape as to intimate to the jury what the judge believes the evidence to be,' that the rule of the statute [Code, § 81-1104] is infringed." Olliff v. Howard, 33 Ga. App. 778, 782 ( 127 S.E. 821), and cit.; Bainbridge Coca-Cola Bottling Co. v. Miller, 38 Ga. App. 763 (3) ( 145 S.E. 473). There was no expression or intimation of opinion in the charge in this case by using the words "said offense" in an instruction that "no conviction shall be had for said offense on the unsupported testimony of the female in question," since this language immediately followed the statement, "I will give you the definition of rape as defined by the Code of Georgia," which the judge proceeded to do, and the words complained of thus plainly had reference, not to what constituted the proved facts of the particular case, but to the "offense" as defined by the Code. Immediately following this language, the judge was careful to state, "You may look to all the facts and circumstances and see if [the woman] made an outcry at the time the crime was committed, if one was committed." Nor is there any merit in the exception to the words, "the crime of rape," in an instruction that "the crime of rape, the law says, shall be punished by death, unless the jury recommend him to mercy," since manifestly the judge was merely stating what the law prescribed as to the punishment for any crime of rape, without referring to what facts had been proved in this case.
Judgment affirmed. All the Justices concur.
No. 13316. JUNE 13, 1940. REHEARING DENIED JULY 12, 1940.
The defendant was found guilty of rape, with a recommendation to mercy and a sentence of ten years in the penitentiary. While the alleged victim was twenty-two years old, and testified that sexual intercourse resulted from force used by the defendant, the State introduced testimony also to show that she was mentally incapable of expressing any intelligent assent or dissent to the sexual act; as to her inability to learn the alphabet, or to read or write, after attending school at the ages of six, seven, and eight, as to her inability to cook, milk, plow, take up butter, or do more than simple sewing, although she was able to pick cotton, wash, churn, and make beds; and that her mental capacity was that of a young child. The defendant had known her for about three weeks before the alleged offense. She testified in detail as to her riding in an automobile with the defendant and a codefendant; that the defendant by force took her into the woods and completed the sexual act, notwithstanding her continual resistance; that afterwards the codefendant also attempted to have sexual intercourse with her, but did not complete the act; that the defendant on trial threatened to kill her if she told any one, and for this reason she did not inform the persons whom she first saw as to what had happened; that as soon as she was able to get a ride home the next day, she informed her mother as to what occurred, and a warrant was taken out. Her testimony was corroborated by testimony of the mother as to her complaint to the mother, and of the mother and father as to bruises on her shoulder, her clothing being torn, and her nervous condition.
The defendant offered no testimony, and relied on his statement to the jury, in which he said that he had been to see this girl the night before, had a date with her; and that "We went to ride and went down the road there, and I stopped and had intercourse with her, and she was perfectly willing to do it. And we went to [the house of a named person], and I don't deny drinking liquor, and I got sorter tight, and I went to sleep. And I went back up there and had a puncture, and I couldn't get home; and that is all I know about it. But I didn't rape her. That is the truth, and she knows it."
In addition to the exceptions as to alleged intimations of opinion in the charge to the jury, the defendant excepted to the failure to charge, without request, as to the burden of proof of the female's mental capacity. In this connection the judge charged: "It is incumbent upon the State to prove every material allegation in this indictment. I also charge you that the defendant enters upon the trial of the case with the presumption of innocence in his favor, and that presumption remains with him throughout the trial until and unless it is overcome by proof on the part of the State, establishing his guilt to your satisfaction and beyond a reasonable doubt." As to consent he charged: "A man who has sexual intercourse with a female who is mentally incapable of expressing any intelligent assent or dissent or to exercise any judgment in the matter is guilty of rape, though no more force is used than necessary to accomplish the carnal act, although the woman offered no resistance," in accordance with the rule in Smith v. State, 161 Ga. 421 (supra). He then charged: "By intelligent assent is meant whether the female was lacking in intelligence to comprehend the nature and consequences of the act and to distinguish morally and legally between right and wrong. The mere fact that a woman is weak-minded does not disable or debar her from giving consent to the act of intercourse with her when she is capable of exercising her will sufficiently to control her personal actions, is not rape; and if there is a reasonable doubt whether force was used, the jury should acquit, though the woman was of weak mind. I charge you that a woman with less intelligence than is requisite to make a contract may consent to sexual intercourse so that the act will not be rape on the part of the man. Rape, being the carnal knowledge of a woman forcibly and against her will, necessarily implies the entire absence of consent on her part, and it follows there can be no rape if there was any kind of consent of the woman, but the whole transaction from beginning to end must be forcibly and against her will. I charge you, if the woman gave any kind of consent, it would not be rape — it matters not how that consent was obtained, or how reluctantly that consent might have been given. If there was the least part of consent on the part of the woman during the transaction, then the defendant in this case could not be convicted of the offense of rape." He further charged: "If you believe beyond a reasonable doubt that the defendant . . did have sexual intercourse with [the woman named] . . and that she was not mentally capable of expressing any intelligent assent or dissent to the sexual intercourse or to exercise any judgment in the matter, then you would be authorized to find the defendant guilty of rape, though you believe that the defendant used no more force than was necessary to accomplish the carnal act, and that [the woman] offered no resistance. I also charge you, if you believe that the defendant did have carnal knowledge or sexual intercourse with [her] and she was mentally capable of consenting to the sexual intercourse and did consent thereto, or that the carnal act was not done forcibly and against her will, then the defendant would not be guilty. The question of the mental capacity of [the woman] is one for your determination under the circumstances." He then charged the rules if sexual intercourse was accomplished by force and against the will of the female.