Smith v. State
| Citation | 131 S.E. 163,161 Ga. 421 |
| Decision Date | 17 December 1925 |
| Docket Number | 5118. |
| Parties | SMITH v. STATE. |
| Court | Supreme Court of Georgia |
Rehearing Denied Jan. 16, 1926.
Syllabus by the Court.
Where a defendant is charged with rape of a female who is mentally incapable of expressing any intelligent assent or dissent to acts of sexual intercourse, or of exercising any judgment in the matter, and where such female testifies to acts of sexual intercourse between her and the defendant (conceding that the testimony of a female capable of consenting in a rape case must be corroborated), the only corroboration of the testimony of such imbecile female necessary is proof of facts or circumstances tending to corroborate her testimony as to the acts of sexual intercourse with the defendant. Slight circumstances may be sufficient to corroborate the woman, and the sufficiency of the corroboration is a question for the jury. Where there is proof of the birth of a child as a result of the illicit intercourse between such woman and the defendant, and of the resemblance of such child to the defendant, this may furnish sufficient corroboration of the testimony of such female as to such acts of sexual intercourse.
"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 is used than is necessary to accomplish the carnal act, and though the woman offer no resistance."
(a) A female over 14 years of age is presumed to possess sufficient mental capacity to intelligently assent to or dissent from acts of sexual intercourse; and where in a rape case the contention of the state is that a woman above that age did not possess such intelligence, the burden rests upon the state to establish this fact.
(b) There is evidence in the record which would authorize the jury to find that the female alleged to have been raped was an imbecile, not possessing sufficient mental capacity to intelligently assent to or to dissent from acts of sexual intercourse with the defendant, or to exercise any judgment in the matter.
In such a case the true test of the mental capacity of the injured female was, not whether her mental capacity was below that of a normal girl 14 years of age, but whether she possessed the mental capacity required under the principle announced in the second headnote above.
While the court erred in instructing the jury upon the subject of their right to find the defendant guilty of adultery and fornication under the indictment against him for rape, if they found him not guilty of rape, but of the offense of adultery and fornication, such erroneous instruction does not require the grant of a new trial, as the defendant was not found guilty of the latter offense.
We cannot say as a matter of law that the verdict was decidedly and strongly against the weight of the evidence, and was sufficient to raise a reasonable doubt of the defendant's guilt in the minds of the jury, for the reason that the father of the injured female testified that she knew it was wrong to have sexual intercourse with the defendant; there being evidence offered by the state to the contrary. This fact was for the consideration of the jury, and might or might not induce them to believe that there was a reasonable doubt of the guilt of the defendant under the entire evidence in the case.
While the right of a thorough and sifting cross-examination of the witnesses called against him belongs to a defendant in a criminal case, the court properly, on the cross-examination of a witness for the state, refused to permit such witness to answer the question why he had sworn out a warrant against the defendant for adultery and fornication, when he knew that the defendant was accused of rape, as such question assumed the existence of such warrant and of such knowledge on the part of the witness; especially as the trial judge stated to counsel for the defendant that he would require the witness to answer this question if the warrant was introduced counsel for the defendant having such warrant in his possession and having exhibited the same to the witness.
On the trial of a defendant for rape, based upon acts of adultery with an imbecile female, and upon her mental incapacity of intelligently assenting to acts of sexual intercourse with the defendant, it cannot be said, as a matter of law, that the female was mentally incompetent of testifying against the defendant as to such acts; and in the absence of any effort of the defendant to have her mental capacity tested by the court, and of any ruling of the court thereon, we cannot say that the verdict is without evidence to support it because the female was the only witness to such acts of intercourse with the defendant.
There is evidence to support the verdict.
Additional Syllabus by Editorial Staff.
In view of Pen. Code 1910, § 1044, whenever the purpose is to impeach or discredit the witness, or to show bias, corruption or prejudice, great latitude in cross-examination should be allowed.
Error from Superior Court, Wilkes County; C.J. Perryman, Judge.
O. S Smith was convicted of rape, and he brings error. Affirmed.
H. E. Combs and Clement E. Sutton, both of Washington, Ga., for plaintiff in error.
M. L. Felts, Sol. Gen., of Warrenton, B. W. Fortson, of Washington, Ga., Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
O. S. Smith was convicted of rape upon the person of Roselle Smith. The jury recommended him to mercy, and fixed his sentence at service in the penitentiary from four to six years. He moved for a new trial upon the general grounds, and by amendment added other grounds. The motion was overruled, and to this judgment he excepted.
1. It is insisted by the defendant that the testimony of the female alleged to have been raped by the defendant was not corroborated, and that for this reason the verdict is without evidence to support it. This insistence is based upon the theory that there was no outcry made by the female, that there was no examination of her clothes or person to determine whether they showed any sign of the commission of a rape upon her person, and that she did not report the alleged offense to the members of her family. Under the view which we take of this case, corroboration of but one fact was necessary, and that fact was whether the defendant had sexual intercourse with this woman. If she was mentally incapable of giving her consent to the acts of intercourse between her and the defendant, then these acts per se constituted rape, although they were consummated without objection on her part and not against her will. Acts of intercourse with a female mentally incapable of giving assent thereto are in law considered as done forcibly and against the will of the injured female, and constitute rape. Conceding that the testimony of a female, in a case of rape, where she is capable of consenting, must be corroborated, the only corroboration necessary in a case where the woman is an imbecile incapable of consenting is proof of facts or circumstances tending to sustain the testimony of the woman as to acts of sexual intercourse with the defendant. We think there are such facts and circumstances in the record. The defendant was a near neighbor of the family of this woman. Prior to her despoilment she was a frequent visitor at his home. It was shown that she did not visit other homes or go with other men. She became pregnant and bore a child. There is evidence that this offspring of her illicit intercourse resembles in appearance the defendant. It is a general rule of breeding that like begets like. Slight circumstances may be sufficient to corroborate the woman. The sufficiency of the corroboration and the extent of the corroboration necessary is always a question for the jury. Powers v. State, 44 Ga. 209 (4); Rawlins v. State, 124 Ga. 31, 34, 52 S.E. 1. So we are of the opinion that the testimony of the female as to the acts of fornication and adultery with the defendant is corroborated.
2. The female alleged to have been raped by the defendant was 27 years of age. The serious question in this case is whether she was mentally capable of intelligently assenting to, or dissenting from, acts of intercourse with the defendant. If she possessed sufficient strength of mind to intelligently assent to these acts of intercourse, then it might fairly be inferred from the evidence that she consented thereto, and that the state failed to make out a case of rape. This court on this subject has laid down the following principle:
"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." Gore v. State, 119 Ga. 418, 46 S.E. 671, 100 Am.St.Rep. 182; Brown v. State, 138 Ga. 814, 76 S.E. 379.
The same principle has been announced by the Court of Appeals. Morrow v. State, 13 Ga.App. 189, 79 S.E. 63. A female over 14 years of age is presumed to possess sufficient mental capacity to intelligently assent to or dissent from acts of sexual intercourse; and where in a rape case the contention of the state is that she did not possess such intelligence, the burden rests upon the state to establish this fact.
The injured female was sworn as a witness for the state, and gave this account of her illicit relations with the defendant: She did not know how many times she had had sexual intercourse with him, but it was many times. The first act of intercourse occurred under these circumstances: She was over at the...
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