Opinion
30276.
DECIDED JANUARY 25, 1944.
Assault with intent to rape; from Sumter superior court — Judge Harper. August 9, 1943.
R. L. LeSueur, for plaintiff in error.
E. L. Forrester, solicitor-general, contra.
A negro man upon being found at two o'clock in the morning on the bed of a white girl, with his face up against her face, and who, upon being discovered by the girl, caught her hand as she slapped at him, and upon the simultaneous approach of the girl's mother from an adjoining room, fled from the house and escaped, may be convicted by the jury of an assault with intent to rape.
DECIDED JANUARY 25, 1944.
Richard Patrick, a negro man, was convicted of an assault with intent to commit rape upon a white girl fourteen years of age. His motion for a new trial, based on the general ground only, was overruled, and he excepted.
The alleged victim testified: "I went to bed in the room I have described to that jury; my little brother went to bed in that same room that night, but in a different bed; I went to sleep during that night; I was awakened by a mumbling noise on my right side; I did not understand what the mumbling was, but it did awake me; when I was awakened by that noise, I slapped at this person, and this person grabbed my hand; I told that person to get up; I did not know who that person was at that time; I had no idea or opinion as to who it was at the time I slapped at him; my little brother had gotten in the bed with me before, and at first I thought it was my little brother; I slapped at him then, and told him to get over; right after I did that he grabbed my hand right around the palm; all the time this had occurred this person was getting up off the bed; when I first awoke, this person was on my bed with his head against my face; I imagine he was lying on the bed; I don't know exactly whether he was lying on the bed, but he was on the bed; his face was against my face."
It appeared that at about two o'clock in the morning the accused waked this witness by laying himself up against her in or on her bed, and when she waked and slapped at him, he caught her hand; that at this instant her mother, who was sleeping in an adjoining room, having heard the mumbling, got out of bed and lighted a lamp and opened the door to enter the room of the witness; that the lamp, as she lighted it, made a tinkling noise which the accused heard, and he jumped out of the bed and ran out the back door, from which the original entry had been effected by breaking a latch; that her mother was in the act of opening the door when the accused ran; that in opening the door, the lamp shone into the room, but the door in opening, and a closet adjacent thereto, prevented her mother from seeing the accused as he fled from the room. That the victim made no outcry was explained by her on cross-examination as follows: "I did not call my mother at all. When I realized it was not my little brother, he jumped up and was running out, and I did not have time to call my mother." It further appeared that as the accused ran out and slammed the dining-room door, the mother had arrived at her daughter's side. The victim positively identified the accused as the person who was in her bed on that occasion, which was about two o'clock in the morning. She had known the accused four or five years. He had on occasions worked for her father. She testified further: "I made some examination of the bed after that person had left this room. There was some sand in the bed; it was not in there when I went to bed that night," and that while the moon was not entirely up, there was a reflection from the moon into the room, by which she could have recognized the accused; but that when her mother appeared in the door with the lamp, this gave additional light, which aided her in recognizing him. There was testimony that the daughter told her mother that night the name of the person who was in the room, and that the reason neither of them told her father until the next day after the sheriff had arrived was because they were afraid of trouble. When the officers arrived, the victim told the deputy sheriff who the person was, and he was taken into safe custody, and the orderly processes of the court put in motion. The mother also testified that she did not see the person in the room on account of the position of the doors and the lighted lamp which she held in her hand, but that she heard him as he was fleeing from the house. There was evidence that tracks were found a few feet from the back door (where the person escaped), and these tracks were followed a considerable distance. The tracks were far apart, indicated that the person making them was running. There was a marked peculiarity about the track made by the left foot which indicated that one of the toes was large and had been wrapped. When the accused was taken into custody by deputy-sheriff MacArthur, the left toe of the accused had a bandage on the toe that showed the peculiarity in the track. The accused made tracks on occasion in the presence of the officer, and they compared with the tracks near the back of the house. At the end of the tracks, a sock was found, and this sock was identified by a witness as the sock he saw the accused wearing on December 27, 1942, just a few hours before the offense was committed.
"In order to authorize a conviction for the offense of assault with intent to rape, the evidence must show beyond all reasonable doubt, (1) an assault, (2) an intent to have carnal knowledge of the female, and (3) a purpose to carry into effect this intent with force and against the consent of the female. If any of these three elements is lacking, the offense is not made out." Davis v. State, 46 Ga. App. 732, 733 ( 169 S.E. 203). Do the facts of this case show an assault? If so, what injury? They show at least an unlawful imposition of the negro's hand upon the female in lust, which would have been an assault and battery, and would have been a greater outrage than to touch her in anger, and equally a breach of the peace. Davis v. State, supra; Goodrum v. State, 60 Ga. 509, 512. Does the fact that the negro was discovered in the girl's room, on her bed, holding her by the hand, show an intention to have intercourse with her forcibly and against her will? Also, how far must he go before the jury are authorized to find that his intent is established? It seems to us that from the position of the parties there is no rational doubt that the negro intended to have sexual intercourse forcibly or by consent. Carter v. State, 35 Ga. 263. There is no evidence whatever remotely indicating that the girl was not virtuous. There is not a particle of proof to show that the defendant expected sexual intercourse to take place by consent of the girl. On the contrary, they were not of the same race, nor of approximately the same social standing, nor were they on any sort of terms of intimacy. Davis v. State, supra. Thus the jury were authorized to find that the facts proved left no rational doubt, that is, a doubt based upon reasonable inferences such as are ordinarily drawn by ordinary men in the light of their experience in ordinary life, that the defendant intended to have sexual intercourse with the girl forcibly and against her will. Following the decisions in Carter v. State, supra, Jackson v. State, 91 Ga. 322 ( 18 S.E. 132, 44 Am. St. R. 25), and Darden v. State, 97 Ga. 407 ( 25 S.E. 676), we hold that the evidence was sufficient to authorize the jury to convict the accused of an assault with an intent to commit rape, and the judge did not abuse his discretion in refusing to grant a new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.