Echols v. State , 153 Ga. 857 ( 1922 )

Per Curiam.

One ground of the motion for new trial complains that after the court had instructed the jury as to the law of rape committed forcibly and against the will of the female as alleged in the indictment, he proceeded: “ But I charge you further, j'ou may look and see what the age of the party alleged to have been ravished was; and if you find she was under fourteen years of age, to make the offense rape it does not have to be done forcibly and against her will, but if the defendant had sexual intercourse with her at all, with her consent or without her consent, if he had carnal knowledge of her he would be guilty of the offense of rape, provided she was under fourteen years of age; for to have sexual intercourse with a female now in the State of Georgia is rape, provided the female is under fourteen years of age, and provided she is not legally married to the man who has sexual intercourse with her; and in that connection I charge you that it is unlawful for any person to have sexual or carnal intercourse with any female child under the age of fourteen years, and, if found guiltjq that they shall be punished as for rape; provided, however, that the jury trying the same may recommend them to the mercy of the court; and provided, further, that the jury may recommend that the defendant be punished as for a misdemeanor; and provided, further, that no conviction shall be had upon the uncorroborated testimony of the female.” Error was assigned upon the portion of the charge which is quoted, on the ground that it charged the law of rape as provided in the act of 1918 (Acts 1818, p. 259), but was not authorized under the indictment, which charged commission of rape only by force and against the will of the female, without any reference to her age. It was contended that the act of 1918 provided a new oifense of rape, that is to say, it makes acts of sexual intercourse with a female' child between the ages of 10 and 14, to which she was consenting, rape, whereas sexual intercourse with such female by her consent prior to the passage of the act was not rape; and inasmuch as there is a distinction between rape as defined in the act of 1918, supra, and rape as defined in § 93 of the Penal Code, no conviction could be had under the act of 1918, the indictment containing no charge of rape under the definition given in that act. We think this contention is unsound. The act of 1918, including the caption, in so far as the same is material, is as follows: “ An act to define and fix the age at which female children may lawfully consent to acts of sexual intercourse; to provide a punishment for a violation thereof; and for other purposes. Section 1. Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of same, that from and after the passage of this act it shall be unlawful for any person to have sexual or carnal intercourse with any female child under the age of fourteen (14) years, unless such person shall have previously become lawfully married to such female child.” Section two merely provides that the punishment shall be as prescribed by section 94 of the Penal Code, unless the jury shall recommend misdemeanor punishment; and also provides that no conviction shall be had on the unsupported testimony of the female in question. Section 3 repeals conflicting laws. While the caption is not a part of the act itself, yet it may be considered to clarify the meaning of the act, and to determine the intention of the legislature where the same is in doubt. The act, construed in connection with the caption, clearly indicates the intention of the General Assembly to fix the minimum age at which a female can consent to sexual intercourse at fourteen years, and makes it unlawful for any person to have sexual or carnal intercourse with any female under that age, unless such person shall have previously become lawfully married to such female child. It did not create a new offense of rape. It prescribed the’punishment to be the same as that provided in section 94 of the Penal Code, which has application to the crime of rape as it existed prior to the passage of the act of 1918. There are a number of decisions in other jurisdictions which hold that, under an indictment charging rape forcibly and against the will of the female, a conviction cannot stand where the evidence shows the female to he under the age of consent, but where the evidence does not show that the act was committed forcibly and against her will. It has already been decided by this court that “upon the trial of an indictment for rape it is competent to show that the female upon whom the crime was alleged to have been committed was under ten years of age, though the indictment contained no such allegation.” McMath v. State, 55 Ga. 303. This case furnishes authorit}^ therefore, for the admission of evidence that the female was unable to consent in a case where the indictment contained no allegation as to age. It would seem to follow necessarily from this ruling that the Court-is authorized to charge the principle of law that a female under fourteen years of age cannot consent, where the indictment contains no allegation as to age; for surely if evidence can be admitted on the question, the court can charge the jury the law in reference thereto. And see the case of Stephen v. State, 11 Ga. 225, where the indictment charged that the. accused then and there, “ forcibly and against her will, feloniously did ravish and carnally know” a named female, and where the indictment contained no allegation as to her age. See also Gosha v. State, 56 Ga. 36, where it was ruled: “An infant under ten years of age cannot consent to sexual intercourse, and the fact that such is her age is conclusive that the act is done forcibly and against her will.” We therefore conclude that there was no error in the charge complained of in this ground of the motion 'for a new trial.

2. Another ground of the motion for new trial complains of the refusal of the court to allow the attorney for the defendant to press his cross-examination of the alleged injured female who had been introduced as a witness for the State. The girl was the first witness introduced by the State, and testified as to the commission of the offense forcibly and against her will. ITer testimony as to the time, place, and other circumstances of the alleged offense was at least consistent, if not suggestive that her relations with the accused were by consent. She testified as to the length of the time in which the defendant was engaged in the act, stating the time to be thirty minutes, - and that she calculated the time by counting. After giving such testimony she was finally asked, on cross-examination:' “ Did your mother tell you to tell us about the counting?” The State’s counsel objected to the question, and the court ruled: “Yes, I think you have gone far enough on that counting business.” Error was assigned upon the ruling, on the ground that it abridged the right of -cross-examination of the witness. The complaint made in this ground of the motion for a new trial does not show clearly what the ruling of the court was. The ground of the motion covers nearly three pages of typewritten matter, most of which consists of remarks of the court and questions and answers. There was a lengthy cross-examination, containing many repetitions, from which, taken as a whole, it does not appear that the right of cross-examination was unreasonably abridged.

3. Another ground of the motion for new trial complains of the refusal of the judge to charge, on timely written request: “I charge you, gentlemen, that if the defendant endeavored to have intercourse with the person he is alleged to have raped, but before securing a penetration ho desisted for any reason, I charge you that defendant would not be guilty of the offense of rape.” This request was inaccurate. The defendant might have “ desisted,” and yet not have abandoned the enterprise, and may have finally completed the offense. The court did not err in refusing the request.

4. Another ground of the motion for new trial complains, that, after request of the jury for further instructions as to their right to fix the maximum and minimum sentence in case of a conviction with recommendation to mercy, the court instructed them on that subject substantially as provided in the statute, but, after giving such instruction, failed to charge them in connection therewith that the jury “ could recommend that the defendant could bo punished as for a misdemeanor, in which event the same would be made the judgment and sentence of the court.” During the charge the judge instructed the jury as it is contended he should have charged, and his failure to repeat that portion of the charge could not have been misleading or confusing to the jury.

5. The verdict is supported by evidence.

Judgment affirmed.

AM the Justices concur, except