Todd v. State

• Decision Date: 16 June 1920
• Docket Number: 10998.
• Citation: 103 S.E. 496,25 Ga.App. 411
• Parties: TODD v. STATE.
• Court: Georgia Court of Appeals

103 S.E. 496

25 Ga.App. 411

TODD v. STATE.

No. 10998.

Court of Appeals of Georgia, First Division

June 16, 1920

Syllabus by the Court.

At common law and under Pen. Code 1910, § 34, sexual intercourse with a female child under the age of 10 years, whether had with or without her consent, stands upon the same footing as if had forcibly and against her will; a child of that tender age being incapable of giving any consent which the law will recognize. Stephen v. State, 11 Ga. 238 (15). Even if the female be over the age of 10 years, the presumption of capacity to consent is rebuttable. Jones v. State, 106 Ga. 365, 34 S.E. 174 (1).

By an act passed in 1918, illicit sexual intercourse with a female child under the age of 14 years, whether had with or without her consent, also stands upon the same footing as if had forcibly and against her will, and shall be punished as prescribed by section 94 of the Penal Code of 1910 "unless the jury trying the case shall recommend that the defendant be punished as for a misdemeanor, in which event the same shall be made the judgment and sentence of the court." Acts 1918, p. 259. By virtue of that act a female child under the age of 14 years, though above the age of 10 years, is, regardless of her mental and physical development, legally incapable of consenting to illicit sexual intercourse.

"It is incumbent upon the Legislature to make provision for preserving the good order, peace and security of society; and when an act passed for that purpose is susceptible of a construction which completely attains it, it is the duty of the courts to give the act that construction, rather than one which would exclude from its operation a portion of the cases essential to its complete aim and object." Gravett v. State, 74 Ga. 191 (1a). And where, as with the act of 1918, the sole purpose of the act is to increase the protection offered by law to the children of this state, it will not be so construed as to decrease the protection afforded by any prior law.

Under the act of 1918, an attempt to have illicit sexual intercourse with a female child under the age of 14 years constitutes an assault with intent to rape. Suggs v State, 24 Ga.App. 323, 100 S.E. 778; Griffin v State, 26 Ga. 496, 497.

Both rape and assault with intent to rape, as defined by Pen. Code 1910, § 1062, are felonies which cannot be reduced to misdemeanors. But as defined by the act of 1918, even rape not to mention the attempt, may be either a felony or a misdemeanor, as the jury trying the...