Opinion
31449.
DECIDED JANUARY 28, 1947.
Assault with intent to rape; from Fulton Superior Court — Judge Almand. September 6, 1946.
Howard, Camp Tiller, for plaintiff in error.
E. E. Andrews, Solicitor-General, Durwood T. Pye, and Hoke Smith, contra.
1. Where a defendant is charged with assault with intent to commit rape, it is not necessary for the State to show that he expressed in so many words an intent to have carnal knowledge, and a purpose to carry into effect this intent with force and against the consent of the prosecutrix, to enable the jury to arrive at the fact that he so intended. The intention may be gathered from the circumstances of the case as proved.
2. The record discloses that the evidence for the State was sufficient to support the verdict; and the jury being the judges of the weight of the evidence, this court can not disturb the judgment refusing a new trial.
DECIDED JANUARY 28, 1947.
L. A. Gragg was convicted of an assault with intent to commit rape. His motion for a new trial, based on the general grounds only, was overruled, and he excepted.
The prosecutrix testified in part as follows: "He [the defendant] had been calling to the Southern Bell, he would call for some girl there and I answered the telephone and I couldn't find the girl that he was calling. . . He asked my name and I told him. . . He called again at the telephone company and I gave him my telephone number at home. . . He got to where he called several times a day at home. . . I told him he could come out there if he wanted to but I wasn't going with him. . . [He] said he had been sick and it was raining and it was sleeting and cold and he couldn't get out of the car and for me to come down to the car . . and when he blew the horn I went down to the car and when I got in the car he just shut the door and drove off. I was so scared I didn't know whether to get out or what. . . I asked him where he was going and he said he was going out close to Chamblee somewhere. . . This place was about a mile from the McCord Oil Company. He stopped the car in the woods. He tried to kiss me on the way out there. After he stopped the car in the woods, he started trying to put his arms around me, and I was so scared I didn't know what to do, and he asked me why my lips were trembling and I told him I didn't know. I didn't want to let him know I was scared of him. Then he started trying to put his hands on me. He tried to put his hands up here and then on my privates. He tried to put his hands inside of my clothes. I fought him. He cursed me several times. He tried to put his hands under my dress. He found out he wasn't getting anywhere and he started slapping me on my face. He slapped me until my ears rang. He struck me on my face. He said he just wanted to put his hands on me. It didn't seem like that to me. He tried to put his hands under my clothes and I tried to get away from him and he grabbed my hands and he held them and I couldn't get loose from him. I finally took my elbow and pushed the lever down on the car and got out and ran from him. He caught me and got me almost back to the car and I twisted loose and got away from him again. . . When I twisted loose from him the second time, I ran across the railroad there and there was a gully, I jumped across that and then got over on the highway and went to McCord Oil Company. The attendant at the oil company called the police from there. . . I never at any time consented to any of the acts he did to me."
Upon cross-examination, the young woman alleged to have been assaulted testified in part as follows: "Then he told me, `Since you have seen me you wouldn't want to go with an old man like that, would you.' He said that when he saw the look on my face when I got in the car. . . Just as we turned the corner his horn started blowing, it got caught up and got to blowing. When he got out there and left the door open and went around and raised the hood, right there in twenty-five feet of that drugstore, I could have gotten out and gone in that drugstore if I had wanted to, I thought he was going to take me back home then. . . You asked me if I could have gotten out if I was scared. I was scared, I was so scared I didn't know what to do. . . I went home and I went in the house. I had been boarding there with that lady about three weeks. . . When I did say something to the lady I boarded with, I told her I had been kidnapped. I didn't know what else to call it. . . I told him I had been married to make him let me alone. . . I not only told him that I was married or had been married but I showed him a picture of a baby and told him it was mine; that was trying to make him leave me alone. . . Mr. Gragg slapped me more than one time. I felt like my head was coming off, my ears rang."
In his statement to the jury, the defendant denied that he had struck the prosecutrix and denied that he had put his hands under her clothing or that he had bothered her in any way. He also denied that he had asked her to put her hand on him. Throughout his statement the defendant made it appear that the prosecutrix had led him to believe that she desired to consent to the act of sexual intercourse.
1. The defendant contends that the trial judge erred in denying his motion for a new trial, based on the general grounds, assigns such ruling as error, and says that it is contrary to law. He insists that the testimony does not show that he intended to rape the prosecutrix; and contends that he intended to use every effort to persuade her to have sexual intercourse with him, but intended to go no further if she would not yield without force.
"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). An assault is an attempt to commit a violent injury on the person of another. Code, § 26-1401. Do the facts in this case show an assault? We think that the testimony of the prosecutrix showed this beyond a reasonable doubt. She testified: "After he stopped the car in the woods, he started trying to put his arms around me and I was so scared I didn't know what to do, and he asked me why my lips were trembling and I told him I didn't know. . . He tried to put his hands up here and then on my privates. He tried to put his hands inside of my clothes. I fought him. He cursed me several times. He tried to put his hands under my dress. He found out he wasn't getting anywhere and he started slapping me on my face."
From a mere reading of the record it is obvious that the defendant, as conceded by counsel for the defendant, intended to have carnal knowledge of the prosecutrix. The only question for determination, therefore, is whether or not the defendant had in mind a purpose to carry into effect this intent with force and against the consent of the prosecutrix.
It is not necessary for the State to show that the defendant expressed in so many words an intent to have carnal knowledge, and a purpose to carry into effect this intent with force and against the consent of the prosecutrix, to enable the jury to arrive at the fact that he so intended. The intention may be gathered from the circumstances of the case as proved. Davis v. State, supra; Jackson v. State, 91 Ga. 322 ( 18 S.E. 132, 44 Am. St. R. 25). In seeking the motives of human conduct, the jury need not stop where the proof cases; inferences and deductions from human conduct are proper to be considered where they flow naturally from the facts proved. Ware v. State, 67 Ga. 349, 352. "It is a principle found in many decisions, and in the elementary books, that a person may be guilty of this offense, though the intent afterwards subsides and he desists from his purpose, especially if he so desists from fright at being detected, or from inability to accomplish his purpose." Sharpe v. State, 48 Ga. 16, 21.
The defendant contends that the evidence does not show with greater certainty that he intended to have carnal knowledge of the female forcibly and against her will, than that the handling of the female's person was merely for the purpose of persuading or inducing her to consent. With this contention we can not agree, for we think that the evidence authorizes a finding that the defendant's handling of the female's person was not only a rude assault but was made with actual force and violence, and that his striking and slapping of the female, seizing her and bringing her back to the car when she attempted to escape, were inconsistent with the theory that his assaults were made with the intent to procure her consent; but were consistent with the theory that it was his intention to accomplish his purpose by force and against her will. In addition, the statement of the defendant to Officer Elzey, who had come to the vicinity of the occurrence in response to a phone call made at the request of the female, to the effect that he had not tried to rape the young woman, which statement was made before the defendant had been advised of the female's claim of his assault with intent to rape upon her, was a circumstance which the jury might have taken into consideration.
The cases cited in the brief of the plaintiff in error are clearly distinguishable by their particular facts from the instant case.
The record discloses that the evidence for the State was sufficient to support the verdict; and the jury being the judges of the weight of the evidence, this court can not disturb the judgment refusing a new trial. Puckett v. State, 159 Ga. 230 ( 125 S.E. 208).
"The law allows him [the trial judge] to refuse or grant new trials in the exercise of a legal discretion, but it does not give this court any discretion in the matter. It can only grant new trials when errors of law have been committed, or when the trial judge has abused his discretion in refusing a new trial." Smith v. State, 91 Ga. 188 ( 17 S.E. 68).
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.