Morrow v. State

• Decision Date: 15 August 1913
• Docket Number: 4,880.
• Citation: 79 S.E. 63,13 Ga.App. 189
• Parties: MORROW v. STATE.
• Court: Georgia Court of Appeals

79 S.E. 63

13 Ga.App. 189

MORROW v. STATE.

No. 4,880.

Court of Appeals of Georgia

August 15, 1913

Syllabus by the Court.

Assuming that the female in this case was mentally capable of giving an intelligent consent to the act of sexual intercourse, the offense proved was no greater than an attempt to commit fornication, without an element of assault with intent to rape.

Under the law of this state, sexual intercourse with an infant under 10 years of age is rape, as under that age the female is conclusively presumed to be incapable of giving consent and the man is conclusively presumed to have used force. Between the ages of 10 and 14 years the law raises a presumption that the female is incapable of giving intelligent assent or dissent to the sexual act, and casts upon the man the burden of overcoming this presumption. After the age of 14 years the legal presumption arises that the female is mentally capable of giving consent, and the burden is on the prosecution, when consent is shown, to overcome this presumption. After the age of 14 years the question of physical development is relevant only for the purpose of illustrating the question of mental capacity. The test after this age is mental capacity to understand the sexual act and to give intelligent assent to its commission.

On the trial of an indictment for rape, where the female was over 14 years of age, and the evidence showed that she was neither "a lunatic, idiot, imbecile, or affected by insanity," and that, although weak in mental development, she was nevertheless mentally capable of comprehending and consenting to the sexual act, and did consent to the act, only expressing dissent to its consummation when she saw that she and the accused were discovered in flagrante delicto; that she neither then nor subsequently made any complaint, but afterwards on the same day saw the accused, and agreed to meet him on the next day for the purpose of renewing the illicit relations that had been interrupted--the conviction of the accused of the crime of assault with intent to rape was unauthorized by the evidence, and therefore was contrary to law.

There was ample evidence to authorize the jury to find that Lillie Jones was mentally incapable of expressing any intelligent assent or dissent, or of exercising any judgment, in the matter of the sexual intercourse proposed by the defendant. In my opinion the case is fully controlled by the ruling of the Supreme Court in Gore v. State, 119 Ga. 418 423, 46 S.E. 671, 100 Am.St.Rep. 182, and the judgment refusing a new trial should be affirmed. (Per Russell, J dissenting.)

Error from Superior Court, Haralson County; Price Edwards, Judge.

B. R Morrow was convicted of assault with intent to commit rape, and brings error. Reversed.

Morrow was indicted for rape, and was convicted of the offense of assault with intent to commit rape. He made a motion for a new trial upon the general grounds and upon numerous special assignments of error. The motion being overruled, the case is here for review.

The evidence, substantially stated, is as follows: The accused was 63 years of age. The female alleged to have been assaulted was in her fifteenth year. The girl gives the following account of the occurrence: "I saw Mr. B. R. Morrow, the defendant in this case, along about January 11, 1913, this year. He came down to the mill that week, and told me to be sure to come to town, and he would give me a present. I worked at the mill. He told me to come to town Saturday afternoon. The mill closes down on Saturday sometimes half past 10 and sometimes 11. I went to town that afternoon to get some candy and stuff, and he seen me. No one was with me when I went to town. I met up with Mr. Morrow after I got to town. He told me to come down Head avenue; he had a nice present for me down there. He kept on, and said it was just a little piece; said right down there, the last house. I went down Head avenue; Mr. Morrow went ahead; I don't know how far ahead; just a little piece; I don't know how many feet. When we got down there to the old bridge, he went on up in the woods, and I started to turn around, and he made me go on. He took me by the hand and made me go. I didn't do anything; I was scared of him. He didn't do anything, only hold me by the hand and made me go. He didn't do anything until we got down there; then he laid me down. He started to stick his finger up me. I don't know what I mean by 'up me,' right there [indicating]. Then he didn't do anything until them men come on [the three men who surprised the parties], and I commenced screaming and tried to get away from him. I was lying down. He made me lie down. When he made me lie down I didn't do anything. What I done to keep him from making me lie down, I commenced pushing him, and hollered and cried, and told him I wanted loose. Then he wouldn't let me. He told me just to stay behind; they wouldn't see me; they would go on. Then he didn't do anything, only hold me; I got away from him. He was lying down on the ground. He was on his face, his side. I was right against him, under him. I saw him do something with his clothes. He commenced unbuttoning his pants. Then he commenced pulling that thing out. He didn't do anything with it. I got away from him when them men come. He never stuck anything else in me. When I went down there I didn't know what he wanted to do. I thought he had a present down there. When I got up I went up to Mr. Wheeler's uptown. I then went into the drug store and got some ice cream. I don't know what Mr. Morrow tried to do at the bridge."

On cross-examination she further stated: "I went up there with him expecting to get a present. I don't know whether I resisted or not. The first thing when I got up there he made me sit down. He pulled me down. I was standing up. He was sitting on the ground when he pulled me down. He was holding me before he pulled me down, was hold of me all the time. He had a hold on my hand. There was a house on the hill right above us. I just sat down there by him. Then the next thing I saw those men were coming. When I saw them coming he had started to do something; had started to do that other thing; had started to put his hand under my dress. I don't know how far away those men were when I first saw them. I said: 'There are those men; they are following me from town.' Then I commenced trying to get up. I didn't try to get up before that. I had already lay down; he was right in front of me; he was trying to hide me. Mr. Morrow told me they wouldn't see me. Then I got loose and went on. I went a little piece and cut across through the woods, and went in that other way; went in that road. I didn't go back the same way I came. I was not hurt in any way. My clothing was not torn in any way. My clothing was not unbuttoned, disarranged, or anything of that sort. I don't know whether Mr. Morrow and me was good friends or not. I lived in his house. After this took place down there this time, I went on back to town, and I saw him again, and had another talk with him there, in Hattie Wheeler's presence. I agreed to meet him again the next day. I was going to meet him over there about the bridge, near our house, the next day, down below. I had met him frequently. I didn't tell Hattie anything that had taken place. I went on home that evening. I never told my folks anything about it. The first time I told it was to mama Sunday. I never did tell it until Mr. Pope, the marshal, went down to our house. When he went down there they asked me to tell it before he told it."

Two men who saw the accused and the girl talking together in town testified substantially as follows: They saw the girl and the accused talking together in town, and thought they were fixing to do something, and decided to watch them and to follow them. The accused went on down Head avenue in front of the girl, the girl following on behind; and when they got to the place where they finally stopped, the girl was about 100 yards behind him. The witnesses were about 40 yards distant, and saw that the accused was lying on top of the girl in the attitude of having sexual intercourse. He was making no motion, and neither was she. Neither one said anything. "The girl first discovered us, and she apparently told the accused of our presence. She made no outcry or anything of that kind, and we heard no cry from any one. On seeing us the girl got up and walked off as quick as she got up. Then the accused went on over the hill. Nothing was said by either one of them. The accused did not have hold of the girl at all on the way down there, but went on in front of her. He did not have hold of her when they turned into the woods. The girl made no outcry, nor did she struggle to get away. We were where we could get a good view. After the occurrence that afternoon we saw the accused and the girl go off to themselves, talking, but we did not hear what they said."

In addition to the evidence relating to the actual occurrence the state claimed that the girl alleged to have been assaulted was mentally incapable of consenting to sexual intercourse; that this mental incapacity was known to the accused, and for these reasons the accused was guilty, although no actual force was used by him in the endeavor to accomplish his purpose, and no resistance was made by the female. On the subject of the mental capacity of the girl, the following evidence, in substance, was introduced: The girl's mother testified that she was in her fifteenth year; that she had been to school in Carroll county about five months; that she started to school when she was eight or nine years old; that she learned to read by the pictures in the book; that she was not bright, and acted around the house like a child eight or nine years old; that she...