Opinion
30556.
DECIDED JULY 12, 1944.
Assault with intent to rape; from Oglethorpe superior court — Judge Edwards. April 1, 1944.
Hamilton McWhorter, for plaintiffs in error.
R. Howard Gordon, solicitor-general, W. w. Armistead, contra.
1. Criminal behaviorism is a deviation from what is termed normal behavior, and to say that a crime was unreasonably planned and executed is no ground for reversing a conviction therefor.
2. In explaining instructions previously given, that "assault with intent to rape is an attempt to have carnal knowledge of a female forcibly and against her will," it was not error to charge, under the facts of this case, that, if the jury believed beyond a reasonable doubt that the victim was under the age of fourteen years, it was not necessary for the State to prove all of the elements of assault with intent to rape.
3. In a trial for an assault with intent to rape upon a female under fourteen years of age, the State makes out a case when it shows by evidence that the defendant intended to have carnal knowledge of the female and that he did some overt act in the accomplishment of that purpose.
4. Special grounds 3 and 4 are without merit for the reasons set forth in the opinion.
DECIDED JULY 12, 1944.
The defendants, Horace Harrison and Owen Holman, were jointly tried and convicted of the offense of assault with intent to rape. They filed a motion for a new trial on the general grounds, and thereafter added four additional grounds. The motion was overruled, and on this judgment error is assigned. The indictment was drawn under the Code, § 26-1303, and alleged that the girl on whom the attempt was made was under fourteen years of age. The State's evidence in part shows substantially, that the girl was on her way to school, expecting to ride a bus. The defendants, riding in an automobile, by using threats induced her to get in the car with them, stating that they would take her to school. Instead of stopping at the schoolhouse, they passed by "to the second railroad crossing and out there in a cut and that is where they stopped the car." They forced her to leave the car, and Harrison attempted to have intercourse with her while Holman watched for cars which might be passing on the highway. After such attempt by Harrison, Holman attempted to have intercourse with the girl. Neither was successful. The State's evidence showed that the reason they were unsuccessful was due to the resistance of the girl. After these attempts the girl was taken in the car to the schoolhouse, after school had convened. Upon her arrival at the schoolhouse the teacher observed her condition, and later testified that "her hair was torn down and her dress was soiled. . . She had on a blouse and skirt and the blouse was pulled out and the skirt was dirty, and her hair was down. . . She seemed to be in a nervous state and very much upset mentally." In response to an inquiry as to her condition and being late to school, the girl informed the teacher what had happened to her. Her mother came to the schoolhouse a few hours later for the purpose of having the girl accompany her to Athens. At this time the teacher and the girl informed her mother concerning her treatment by the defendants, and the mother testified concerning the condition of the girl and of her clothing.
The defendants, in their statements, contended that while they did take the girl into the car, they did so in accordance with a previous engagement to do so because the girl and Holman had a date. They denied mistreating the girl in any way; denied having made any improper remarks to her; denied having thrown her down; denied soiling her clothing.
The sheriff testified that the next day after the alleged crime he visited the place where he had been informed the defendants mistreated the girl, and saw the tracks of two men and a woman, and other evidence corroborating the girl's claim. The evidence is undisputed that the girl was under fourteen years of age. The clothing which she wore on the day of the crime was introduced in evidence. There was evidence to the effect that this clothing was in the same condition the day of the trial as it was when the girl reported the matter to the teacher and to the girl's mother. The evidence revealed that Harrison was married, and that Holman had reached draft age.
On this evidence the jury returned a verdict of guilty and fixed the punishment at not less than one nor more than one year in the penitentiary.
1. It is insisted that the evidence for the State is so unreasonable that the verdict should not be permitted to stand. While it is true that to normal thinking people the conduct of the defendants as shown by the State's evidence is in some respects most unreasonable and in all respects most reprehensible, yet this is true of practically all crimes, particularly those of the class now under consideration. To say that a crime is unreasonably planned and executed offers no good argument for reversing a conviction therefor. There are few perfectly planned and executed crimes, and no crimes are reasonable. They are of such degree of unreasonableness as they deviate from so-called normal behavior. Most, if not all criminals are unreasonable, or they would not be criminals. In the process of our machinery for trying criminals, the standard by which we try them is that of the conduct of a reasonable person, and when their conduct deviates from such normal behavior, and a penal statute is violated thereby, according to the evidence, they are adjudged to be criminals. Therefore we conclude that because forsooth the evidence shows unreasonableness in the violation of the rules of common decency by the defendants in the case at bar, such unreasonableness offers no argument under the facts of this case that would require us to reverse the verdict which has the approval of the trial judge. The judge did not err in overruling the motion for a new trial on the general grounds.
2. Special ground 1 complains because the court charged: "If you find that she was under the age of fourteen years, as contended by the State, and the burden is on the State to prove that beyond a reasonable doubt, then, gentlemen, I charge you that all of the elements of assault with intent to rape are not necessary, as I have given you." Error is assigned on this charge because it in effect told the jury (a) that if the girl was under the age of fourteen years none of the elements of assault with intent to rape were necessary to be proved by the State; (b) that all the State's evidence showed that there was no consent on the part of the girl; (c) that if the victim was under the age of fourteen years the State was not bound to prove any of the elements of rape, but that where the attempt to rape was by force the State must prove all the elements of assault with attempt to rape. The trial judge, just previously and next preceding this excerpt of which complaint is made, had charged the jury "that an assault to rape is an assault upon a female with the intent to have carnal knowledge of her forcibly and against her will." Since the indictment alleged that the girl was under fourteen years of age, it was very proper for the court to charge in effect, as was done, that if the State's evidence showed that the girl was under the age of consent, that is, under fourteen years of age, it was not necessary for the State to prove that the attempt was "forcibly and against her will." It is clear from reading the whole charge that the court meant to say to the jury, and the jury so understood, that if she was under the age of fourteen she was incapable, as a matter of law, of giving her consent, and that the proof of such age was a substitute, as a matter of law, for the element of "forcibly and against her will." See Wright v. State, 184 Ga. 62, 66 (4) ( 190 S.E. 663), wherein the court said: "The defendant was convicted of the rape of a female under fourteen years of age. While the indictment charged that he had carnal knowledge of her forcibly and against her will, and did not state her age, the evidence showed that the crime was accomplished with her consent and that she was under fourteen years of age at the time. Echols v. State, 153 Ga. 857 ( 113 S.E. 170). A child under fourteen years is legally incapable of consenting to illicit sexual intercourse. Todd v. State, 25 Ga. App. 411 ( 103 S.E. 496). In such cases the presumption of the law is that a female under that age will not voluntarily consent to fornication; and this presumption supplies the force essential to the commission of the crime of rape. Holland v. State, 161 Ga. 492 ( 131 S.E. 503); Ollis v. State, 44 Ga. App. 793 ( 163 S.E. 309). Proof of force and resistance is therefore unessential." The provisions of the law, under the Code, § 26-1303, did not have the effect of creating a new and separate crime of rape, but sought only to raise the age of consent from that of the common law, which was ten years, to fourteen years. The age of inability, under the law, to consent to such intercourse supplies the element of force. Vickery v. State, 48 Ga. App. 851 ( 174 S.E. 155). It is clear to our minds that the court committed no error as complained of in this ground.
3. In special ground 2 error is assigned as follows: "Because the court erred in charging the jury as follows, to wit: `If you find that as the State contends in this case that the alleged victim . . was under the age of fourteen years, then I charge you that if the defendants made an assault upon [her] and that at the time they made this assault, that it was their intention to have carnal knowledge of her, whether forcibly or not, with or without consent, you would be authorized to find them guilty of the offense of assault with intent to rape, as charged in the indictment.'" It is contended that this excerpt was error because it instructed the jury that if they should believe that the victim was under the age of fourteen years it was unnecessary to prove any of the elements of rape. This ground is without merit. In a trial for an assault with intent to rape upon a female under fourteen years of age, the State makes out a case when it shows by evidence that the defendants intended to have carnal knowledge of the female, and that some overt act was done in the accomplishment of that purpose. If she be under the age of fourteen years her consent or lack of consent is immaterial. This is the substance and the effect of the assignment of error in this ground, and it is without merit. Vickery v. State, supra.
4. Special grounds 3 and 4: These grounds are identical except in one the court used the name of one of the defendants, and in the other, the name of the other defendant. The excerpt complained of is: "With reference to the defendant, Horace Harrison, I charge you if you believe beyond a reasonable doubt, Horace Harrison laid his hands upon . . the female alleged to have been assaulted, and he did so with the intent and purpose of having carnal knowledge of her, and you also believe she was under the age of fourteen years, you would be authorized to find him guilty of assault with intent to rape." Error is assigned upon this excerpt because it is contended that the State's entire evidence showed that the defendants used actual force; and since there was no evidence to the effect that the girl submitted or consented, it was error for the court to make any reference to her being under the age of fourteen years. If this be error, as contended by counsel for defendants, we fail to see how it could have harmed them.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.