Jones v. State

• Citation: 34 S.E. 174,106 Ga. 365
• Parties: JONES v. STATE.
• Decision Date: 01 February 1899
• Court: Georgia Supreme Court

34 S.E. 174

106 Ga. 365

JONES v. STATE.

Supreme Court of Georgia

February 1, 1899

Fletcher Jones was convicted of rape, and excepted to the overruling of his motion for a new trial. Affirmed.

Lumpkin P.J., and Little, J., dissenting.

John R Cooper, for plaintiff in error.

H. G Lewis, Sol. Gen., for the State.

FISH J.

Fletcher Jones was convicted of rape, and, upon his motion for a new trial being overruled, he excepted.

In the motion for a new trial, complaint is made of the following parts of the judge's charge to the jury, viz.: "Between the ages of ten and fourteen, it would depend entirely upon her physical and mental development. To illustrate: Cohabitation with a female under the age of ten years would be rape. She could not give her consent to the act of cohabitation. Between the ages of ten and fourteen she can consent, if she is capable of consenting. If her mental and physical development is such that she is capable of consenting, then her cohabitation with a person would be rape. *** If her physical and mental development was such that she could not consent, and you further find from the evidence that he cohabited with her, then such offense would be rape. *** You will look to the entire surroundings, the age of the person alleged to have been assaulted, her conduct then and there, her conduct then and since,--whether or not there was any outcry by her. You will look to all the surroundings to determine whether there has been sexual intercourse forcibly and against her will." Complaint is further made of the refusal to give the following written request: "Gentlemen, the prosecutrix in this case has been proven to be twelve years old; and, if that is true, then I charge you she has reached the age in life at which the law says she is able to give her consent to sexual intercourse."

1. The portions of the charge of the court excepted to were substantially in accord with the decisions of this court upon the subject. In the case of Stephen v. State, 11 Ga 225, it appears from the record that the female assaulted was 15 years of age, poorly grown, not of right intellect, sickly, and that menstruation had not developed. In that case it was held that the jury might consider her stature, constitution, and physical and mental development, in determining whether or not she had the capacity to understand the nature of the act, and to give her consent thereto. In the opinion, Lumpkin, J., said: "The common-law principle is that a child under ten years of age is incapable of consenting. *** Now, it will be readily perceived that the period of ten years designated here is altogether arbitrary. There is, and from the very nature of the case can be, no definite time fixed by law to infer puberty. It depends more upon the constitution and habits of the body of the party than upon age. In cities these developments are made earlier than in the country. There females are often found living in a state of open prostitution at the early age of twelve or thirteen years. The law, to be sure, has said, by implication at least, that where consent is given after ten years of age a rape cannot exist. But this, after all, is a mere presumption, and may be rebutted." In Joiner v. State, 62 Ga. 560, the second headnote is as follows: "Where the person charged to have been ravished is only eleven years and three months old, it is not error to refuse a written request 'that if the jury should find from...