Holland v. State, (No. 4798.)

• Decision Date: 13 January 1926
• Docket Number: (No. 4798.)
• Citation: Holland v. State, 161 Ga. 492, 131 S.E. 503 (Ga. 1926)
• Parties: HOLLAND . v. STATE.
• Court: Georgia Supreme Court

161 Ga. 492

131 S.E. 503

HOLLAND .

v.STATE.

(No. 4798.)

Supreme Court of Georgia.

Jan. 13, 1926.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Fornication; Rape.]

Certified Question from Court of Appeals.

Walker Holland was convicted of fornication, and brought error to the Court of Appeals, which court certified a question to the Supreme Court. Question answered.

C. H. Parker and V. E. Padgett, both of Baxley, for plaintiff in error.

W. B. Gibbs, Sol. Gen., of Jesup, and Alvin V. Sellers, of Brunswick, for the State.

RUSSELL, C. J. The Court of Appeals requested instruction from the Supreme Court upon the following question:

"Walker Holland was tried on an indictment for rape, drawn under the Act of the General Assembly of Georgia, approved July 31, 1918 (Acts 1918, p. 259), the indictment charging that the accused 'did then and there unlawfully, and with force and arms, have sexual intercourse with Annie Cross Elrod, a female child under the age of 14 years, the said Walker Holland not having previously become lawfully married to said female child, both the said Walker Holland and Annie Cross Elrod being unmarried.' The accused was convicted of the offense of fornication. Was the verdict null and void, and did the court err in overruling the defendant's motion to arrest the judgment?"

The question propounded by the Court of Appeals is answered in the affirmative. We are of the opinion that the verdict finding the accused guilty of fornication, under an indictment charging him with rape, is null and void, and that the lower court erred in overruling the defendant's motion to arrest the judgment. Without reference to the older English decisions, we think the decision in this case is controlled by the ruling in Speer v. State, 60 Ga. 381, and the several subsequent cases in this court, in which it has been held that the offense of fornication is not included in the crime of rape. The trial judge apparently recognized the binding force of this rule as to cases of rape in general; but we gather from the insistence of counsel for the state in their brief that the trial court was of the opinion that, since the passage of the act of 1918 (Acts 1918, p. 259), a conviction for fornication might be sustained where the charge of rape depended upon sexual intercourse with a female under the age of 14 years, and who therefore could not lawfully consent to such intercourse. We cannot agree to the contention of state's counsel. Rape has always been defined as the "carnal knowledge of a female forcibly and against her will." The primary purpose of the act of 1918, supra, was to raise what is generally called "the age of consent" to the age of 14 years. The caption of the act 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."

From the caption it will be observed that the denomination of the offense and the punishment are but incidents in the paramount purpose of the act, which was the protection of female children of immature age from defilement and debauchery. When the Legislature prescribed in the second ...