Opinion
33827.
DECIDED JANUARY 10, 1952.
Assault with intent to rape; from Clarke Superior Court — Judge West. August 20, 1951.
Hamilton McWhorter, Fred A. Gillen, for plaintiff in error.
D. M. Pollock, Solicitor-General, J. T. Sisk, contra.
1. A certified copy of a birth certificate is prima facie evidence of the facts therein contained, and any error therein may be explained by parol evidence.
2. It is not necessary, on a charge of assault with intent to rape, to prove such act by testimony corroborative of the female, since assault with intent to rape is a separate offense in which no such provision is included. This is the rule in such cases, whether the female is over or under the age of fourteen years.
DECIDED JANUARY 10, 1952.
Morris Cunningham was convicted in the Superior Court of Clarke County of assault with intent to rape. Upon the trial of the case the evidence was substantially as follows: that Ethelene McCannon, the prosecuting witness, was, according to her testimony and that of her mother, born on May 23, 1937; that she was the daughter of Lottie McCannon and Bennie McCannon and was the sixth child born to them; that on December 9, 1950, she went from near Lexington, Georgia, where she lived with her mother, to Washington, Georgia, to visit her sister; that the defendant called at the house the next morning and she went riding with him and returned to her sister's home; that he returned to the house between six thirty and seven o'clock that evening and told her that her mother had sent for her to come home and that he would take her home (the defendant lived in a house adjacent to that of the witness's mother); that he did not take her home, but took her at this place; that they left before the picture was over and he turned off to a dirt road where he parked and attempted to have intercourse with her. The witness testified that she resisted and the defendant was unsuccessful; that he then drove on to a tourist camp where they spent the remainder of the night; that he again attempted to have intercourse with her; that she again resisted successfully; that neither of them went to sleep; that about six the following morning he suggested getting one Fred Andrews to take her home; that she told him to take her to the residence of the Sheriff of Oglethorpe County at Lexington, which he did; that she went into the kitchen but said nothing to the persons there as to what had happened; that within a few minutes her mother appeared and slapped her; that she then denied she had done anything wrong; that her mother took her to a doctor, on the advice of the sheriff, and she then described to her mother what had happened; that the doctor conducted a visual examination only, and from it found no evidence that a sexual act had been committed upon her; that the statement that the defendant had told the witness her mother had sent for her was corroborated by the witness's sister; that the mother denied having sent for her, and the defendant in his statement maintained that he had not said so. The defendant further contended that the girl had been very forward with him and refused to go home, and that he had eventually parked the car by the roadside and gone to sleep, but had not gone to a tourist camp. An officer testified that he had taken the witness in a car and she had pointed out to him the road traversed by her and the tourist camp at which she had stopped, which was located in Clarke County. Witnesses for the defendant testified to having heard the prosecutrix state that she was sixteen years old. It was stipulated that the next youngest child to the witness was born on January 23, 1936. A birth certificate was introduced over objection, which showed that Ethelene McCannon, daughter of Lottie and Bennie McCannon, was born on May 23, 1937, and was the sixth child born to these parents, but the birth certificate showed the word "negro" by each parent. Every material fact in the birth certificate was corroborated by the direct testimony of the witness's mother, who explained the error in race as having been made because she had employed a negro midwife who had reported the birth to the authorities.
Upon conviction the defendant filed a motion for a new trial on the general grounds, which was later amended by the addition of two special grounds, and the overruling of this motion is assigned as error.
1. The second ground of the amended motion for a new trial contends that the birth certificate was erroneously admitted, it showing the parents of Ethlyn McCannon as colored, whereas the Ethelene McCannon in question was of white parentage. It is contended that a certified copy of a public record cannot be altered by parol evidence. However, Code § 88-1212 expressly provides that a certified copy of a birth certificate shall be prima facie evidence only of the facts therein contained. Such evidence may be rebutted. O'Kelley v. State, 63 Ga. App. 609 ( 11 S.E.2d, 718). It was therefore competent for the State to introduce the birth certificate to prove that the witness was under fourteen years of age, and to further prove by parol evidence that the record contained an error as to the witness's race and that of her parents. The second ground of the amended motion is without merit.
2. The general grounds are considered in connection with the first special ground, which contends that the verdict is without evidence to support it since such verdict would necessarily have to be based upon Code §§ 26-1303, 26-1304, providing that it shall be unlawful for any person to have sexual intercourse with any female child under the age of fourteen, but providing that no conviction shall be had on the unsupported testimony of the female in question. The offense of rape is defined in Code § 26-1301 as having carnal knowledge of a female forcibly and against her will. It is not necessary, on a charge of assault with intent to rape, to prove such act by testimony corroborative of the female, since assault with intent to rape is a separate offense in which no such provision is included. This is the rule regardless of whether the female is over or under the age of fourteen. Wade v. State, 27 Ga. App. 650 ( 109 S.E. 511); Atkins v. State, 29 Ga. App. 255 ( 115 S.E. 35). It is not therefore necessary to consider the extent of the corroboration of the testimony of the female here.
Further, where one is charged with assault with intent to rape a female under fourteen years of age, it is not necessary that it be shown that the attempt was forcible and against her will, but it is only necessary to show an intent to have carnal knowledge, and that some overt act was done toward the accomplishment of that purpose. Vickery v. State, 48 Ga. App. 851 ( 174 S.E. 155). The prosecutrix testified in detail as to attempts made by the defendant to have sexual intercourse with her, which included his efforts to pull off her pants and to pull up her dress. She testified in substance that he hugged her, that he entreated her to have sexual intercourse with him; that he pulled off his pants; that he tried to get on top of her; that he got on top of her partially but that she held her legs together; that she tried to fight him off and that she successfully resisted his attempts.
Where the female is over the age of 14 and capable of giving her consent, it is the duty of the jury to determine from the evidence as to the efforts of the defendant to have sexual intercourse with her, whether he is attempting to accomplish his purpose forcibly and against her will, or whether he is attempting to gain her consent. See Reeves v. State, 78 Ga. App. 126, 130 ( 50 S.E.2d 640); Barton v. State, 58 Ga. App. 554 ( 199 S.E. 357); Smalls v. State, 6 Ga. App. 502 ( 65 S.E. 295); Fields v. State, 2 Ga. App. 41 ( 58 S.E. 327). Here, however, the female is under the age of 14 and incapable of giving her consent, for which reason the efforts of the defendant can never be construed as attempts on his part to gain it. See Todd v. State, 25 Ga. App. 411 (4) ( 103 S.E. 496); Suggs v. State, 24 Ga. App. 323 ( 100 S.E. 778).
The verdict is supported by the evidence, and the trial court did not err in overruling the motion for a new trial.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.