Gore v. State

• Decision Date: 12 February 1904
• Citation: 119 Ga. 418,46 S.E. 671
• Court: Georgia Supreme Court
• Parties: GORE. v. STATE.

46 S.E. 671

119 Ga. 418

GORE.

v.STATE.

Supreme Court of Georgia.

Feb. 12, 1904.

RAPE—IMBECILE-FEMALE—EVIDENCE.

1. A man who has sexual intercourse with an imbecile female, who is mentally incapable of expressing any intelligent assent or dissent, or of exercising any judgment in the matter, is guilty of rape, though no more force be used than is necessary to accomplish the carnal act, and though the woman offer no resistance.

¶1. See Rape, vol. 42, Cent. Dig. § 11.

2. The evidence warranted a finding that the woman with whom the intercourse was had was, by reason of mental infirmity, incapable of consenting, and, the conviction having been approved by the trial judge, a new trial will not be ordered.

(Syllabus by the Court.)

Error from Superior Court, Floyd County, W. M. Henry, Judge.

Albert Gore, alias Albert Goings, was convicted of crime, and brings error. Affirmed.

M. B. Eubanks and. C. E. Carpenter, for plaintiff in error.

Moses Wright, Sol. Gen., for the State.

COBB, J. "Rape is the carnal knowledge of a female forcibly and against her will." Pen. Code 1895, § 93. This is the common-law definition as given by Blackstone. 4 Bl. 210; 2 Bish. New Crim. L. § 113 (2). Rape, as thus defined, was an offense at common law. English statutes were enacted making the offense penal, but these have been treated as simply declaratory of the common law. Various definitions of the offense have been given. A number of these are collected in an article in 13 Criminal Law Magazine, p. 503, the author of which puts into the following definition the various elements of the several definitions: "Rape is the act of having carnal knowledge, by a man, of a woman, forcibly and against her will, or without her conscious permission, or where permission has been extorted by force or fear of immediate bodily harm." This is probably as comprehensive as any definition that could be given. Ordinarily, penal laws are construed strictly, and, strictly speaking, it might be with some force contended that an act cannot be "against the will" of a person when he or she is not in a physical or mental condition to exercise any will on the subject. See, in this connection, Croswell v. People, 13 Mich. 427, 437, 87 Am. Dec. 774; Bloodworth v. State (Tenn.) 32 Am. Rep. 546. The authorities generally, however, construe the words "against her will" to be synonymous with "without her consent, " and hold that the act of sexual intercourse is against the woman's will, when, from any cause, she is not in a position to exercise any judgment about the matter. Thus intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from the use of drugs or other cause, or sleep, etc., is rape. As stated above, there are a few cases opposed to this view, but the great weight of authority is undoubtedly in favor of giving to the statute such a construction as that just indicated. We have to consider in this case, however, only that form of inability to consent which is presumed to arise from idiocy or imbecility. The rule of law applied by the English courts in cases where the female is alleged to have been idiotic or imbecile is the one generally followed in this country. The rule laid down by those courts is that if the female is so idiotic as to be incapable of expressing any intelligent consent or dissent, or of exercising any judgment in the matter, the offense is rape. See Queen v. Ryan, 2 Cox, C. C. 115; Reg. v. Richard Fletcher, 8 Cox, C. C. 131. The case of Reg. v. Charles Fletcher, 10 Cox, C. C. 248, L. R. 1 C. C. 39, has been regarded (and, it would seem, with much reason) as being in conflict with the two decisions above cited, and as laying down the broad rule that in no case could a conviction he had where nothing appears but the con nection and the imbecility of the female. But the English Criminal Court of Appeals has not so treated that decision. See Reg. v. Barratt, 12 Cox, C. C. 498. In that case it was held: "Upon the trial of an indictment for rape upon an idiot girl the proper direction to the jury is that, if they are satisfied that the girl was in such a state of idiocy as to be incapable of expressing either consent or dissent, and that the prisoner had connection with her without her consent, it is their duty to find him guilty." And it was said that: "The two cases of Reg. v. Fletcher are not adverse to one another. The principle is properly laid down in the first case, and the second case was only a decision on the facts that there was not that requisite testimony of want of assent to justify leaving the case to the jury." See, also, Regina v. Connolly, 26 U. C. Q. B. 317, where the earlier English decisions are reviewed, and the rule is thus stated: "In the case of rape of an idiot or lunatic, the mere proof of connection will not warrant the case being left to the jury. There must be some evidence that it was without her consent—e. g., that she was incapable from imbecility of expressing assent or dissent; and if she consent from mere animal passion it is not rape." A comprehensive statement of the law of the subject as applied by the American courts is found in Clevenger on Medical Jurisprudence of Insanity, vol. 1, pp. 202, 203. This summary of the law is merely an epitome of the decisions which are cited, and seems to us to be a very fair analysis of those decisions. We quote the following from this author: "Sexual intercourse with a woman who is so destitute of mind as to be incapable of giving consent is rape, though she does not resist. The test of mental capacity under this rule is whether she was capable or incapable of giving consent or of exercising any judgment in the matter. And very slight proof of force is necessary where the woman lacks the intelligence to comprehend the nature and consequences of the act, and to distinguish morally and legally between right and wrong; and when the man does not suppose that he has her consent the force required and which is involved in the carnal act is sufficient. But where the will is active, though perverted, the act is not rape, when all idea of force or unwillingness is distinctly disproved. And the mere fact that a woman is weak-minded does not disable or debar her from giving consent to the act, and intercourse with her when she is capable of exercising her will sufficiently to control her personal actions is not rape; and, if there is reasonable doubt whether force was used, the jury should acquit, though the woman was of weak mind. 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 upon the part of the man. And connection with a woman who is in a state of dementia, and not idiotic, but approaching to-ward it, having a predisposition to be with men, and a morbid desire for sexual intercourse, is not rape when no circumstances of either force or fraud accompany the act; nor is intercourse without resistance with a woman...