Griffith v. State , 176 Ga. 547 ( 1933 )

Per Curiam.

1. The act of July 31, 1918 (Ga. L. 1918, p. 259), providing, . among other things, that any person having sexual intercourse with a female under the age of 14 years shall be guilty of rape, and "that no conviction shall be had for said offense on the unsupported testimony of the female in question,” was intended to apply only to cases where the act of intercourse is accomplished with the actual consent or acquiescence of the female and is to be treated as rape merely because the female is under the age of consent as therein specified. Accordingly, tire statute referred to did not change the rule as to the necessity of corroboration in cases not falling within its provisions. Under the evidence, the pres- ■ ent ease is not one to which the act of 1918 is applicable, and for this reason does not require any decision as to the degree of corroboration essential under the provision of the act as quoted; but any question as to the necessity of corroboration or as to the sufficiency of the evidence in the particular case must be determined without reference. to that statute. See, in this connection, Connell v. State, 153 Ga. 151 (6) (111 S. E. 545) ; Cofer v. State, 163 Ga. 878 (3 c) (137 S. E. 378) ; Chapman v. State, 112 Ga. 56 (2) (37 S. E. 102) ; Bledsoe v. State, 135 Tenn. 143 (185 S. W. 1073) ; People v. Downs, 236 N. Y. 306 (140 N. E. 706) ; McLaurin v. State, 129 Miss. 362 (92 So. 289) ; 52 C. J. 1102.

2. Under the rule laid down by the majority in Davis v. State, 120 Ga. 433 (48 S. E. 180), there can be no conviction of the offense of rape on the uncorroborated testimony of the female. This rule will be followed in the present case. See also Vanderford v. State, 126 Ga. 753 (6) (55 S. E. 1025) ; Smith v. State, 161 Ga. 421 (7) (131 S. E. 163) ; Fields v. State, 2 Ga. App. 41 (58 S. E. 327).

3. Where the female alleged to have been raped was a schoolgirl, and testified that on being excused by her teacher to answer a call of nature she repaired for that purpose to a nearby building, where the defendant surprised and seized her and accomplished the act of intercourse forcibly and actually against her will, with the result that she was hurt and bruised and her underclothing torn, and that she at once reported the occurrence to her teacher; but where the teacher who was also introduced as a witness testified that the girl had made no such complaint to her, and testified to no other corroborating fact or circumstance, and there was no other testimony tending to show complaint, the asserted fact of complaint, being dependent for its proof solely upon the testimony of the female, did not constitute a corroboration of this witness. Boling v. State, 91 Neb. 599 (136 N. W. 1078); Hudson v. State, 97 Neb. 47 (149 N. W. 104) ; Hagedorn v. State, 199 Iowa, 1068 (203 N. W. 240) ; 52 C. J. 1104-5.

4. The testimony of the mother that the girl complained to her at a time which was about seven weeks after the alleged commission of the offense, together with testimony of a physician that shortly after such complaint he, at the request of the girl’s parents, examined her person and found that the hymen had been ruptured, but that he could give no opinion as to whether this condition was caused by an act of intercourse, did not, in view of the long and unreasonable delay, amount to any degree of corroboration; and there being no evidence which tended more in the direction of corroboration than that which is referred to in this and the preceding paragraph, the verdict of guilty depended solely upon the uncorroborated testimony of the female; and under the ruling in Dams v. State, supra, the conviction was unauthorized.

No. 9058. February 22, 1933. F. W. Copeland and 8. W. Fariss, for plaintiff in error. Lawrence 8. Camp, attorney-general, M. Neil Andrew's, solicitor-general, T. B. Oress, assistant attorney-general, and Horace D. 8hat-tuclc, contra.

5. The special grounds of the motion for a new trial do not show reversible error.

Judgment reversed.

Beck, P. J., and Bell, J., concur. Atkinson and Hill, JJ., concur in the judgment. Russell, O. J., and Gilbert, J., dissent.