Echols v. State

• Decision Date: 15 July 1922
• Docket Number: 3009.
• Citation: 113 S.E. 170,153 Ga. 857
• Parties: ECHOLS v. STATE.
• Court: Georgia Supreme Court

113 S.E. 170

153 Ga. 857

ECHOLS v. STATE.

No. 3009.

Supreme Court of Georgia

July 15, 1922

Syllabus by the Court.

Movant complained of the following charge to the jury: "But I charge you further, you may look and see what the age of the party alleged to have been ravished was; and if you find she was under 14 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 14 years of age; for to have sexual intercourse with a female now in the state of Georgia is rape, provided she was under 14 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 14 years and, if found guilty, 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." Held, that under the facts of the case this charge was not error.

The ground of the motion for a new trial, in which complaint is made that the right of cross-examination was abridged, is without merit.

The request to charge, set out in the third division of the opinion, was not entirely accurate and adjusted to the case and the judge did not err in refusing it.

The omission to charge, as contended in the fourth division of the opinion, was not erroneous.

The verdict was supported by evidence.

Error from Superior Court, Floyd County; Moses Wright, Judge.

Esau Echols was convicted of rape, and he brings error. Affirmed.

The defendant was convicted of rape, with a recommendation to mercy, and he excepted to a judgment refusing his motion for a new trial. The indictment contained only one count, which alleged that the defendant did, in the county of the jurisdiction, on a named date, "in and upon one Nellie May Bennett, a female, * * * willfully, feloniously, and violently make an assault, and did then and there forcibly and against her will feloniously ravish and carnally know her, the said Nellie May Bennett, contrary to the laws," etc. Uncontradicted evidence was admitted, without objection at the trial, that the alleged injured female was 10 1/2 years of age. The evidence tended to show an act of sexual intercourse between the defendant and the female, and authorized a finding either for or against the state's contention that it was by force and against the will of the female. Other facts sufficiently appear in the opinion.

Atkinson, J., dissenting in part.

Willingham, Wright & Covington, of Rome, for plaintiff in error.

E. S. Taylor, Sol. Gen., of Summerville, J. F. Kelly, of Rome, Geo. M. Napier, Atty. Gen., and Seward M. Smith, Asst. Atty. Gen., for the State.

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, you may look and see what the age of the party alleged to have been ravished was, and, if you find she was under 14 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 14 years of age; for to have sexual intercourse with a female now in the state of Georgia is rape, provided the female is under 14 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 14 years and, if

found guilty, 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 1918, 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 offense 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 section 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 2 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 could consent to sexual intercourse at 14 years, and made 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 be 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 authority, 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 14 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 did 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. Her 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 time in which the defendant was engaged in the act, stating the time to be 30 minutes, and that she...