Evans v. State , 67 Ga. App. 631 ( 1942 )

Unlawful intercourse with a woman whose will is temporarily lost from intoxication is rape.

DECIDED JULY 16, 1942. The evidence in this case presents a most horrible situation. It would serve no good purpose to detail it here. The jury found the defendant guilty of assault with intent to rape. We think the evidence overwhelmingly supports the finding. To our minds it shows beyond peradventure that the white woman whom the negro man attacked was unconscious from excessive use of intoxicating liquor.

There are three elements constituting this offense: (1) Unlawful assault; (2) Intent to have carnal knowledge of a female, and (3) forcibly and against her will. As to the first two there seems to be no dispute. Regarding the third, it is rape to have sexual intercourse with an imbecile female. Gore v.State, 119 Ga. 418 (46 S.E. 671, 100 Am. St. Rep. 182). To the same effect see Smith v. State, 161 Ga. 421 (131 S.E. 163); Brown v. State, 138 Ga. 814 (76 S.E. 379). In theGore case, Judge Cobb speaking for the court and a full bench except Judge Simmons who was absent, says: "Various definitions of the offense [rape] have been given. A number of these are collected in an article in 13 Criminal Law Magazine, page 503, the author of which puts into the following definition the various elements of the several definitions: ``Rape is the act of having carnal knowledge, by a man, of a woman, forcibly and against her will, or without her conscious permission, or where permission has been extorted by force or fear of immediate bodily harm.' This is probably as comprehensive as any definition that could be given. Ordinarily penal laws are construed strictly, and, strictly speaking, it might with some force be contended that an act can not be ``against the will' of a person when he or she is not in a physical or mental condition to exercise any will on the subject. See, in this connection, Croswell v. People, 13 Mich. 427, 437; Bloodworth v. State (Tenn.), 32 Am. R. 546. The authorities generally, however, construe the words ``against her will' to be synonymous with ``without her consent,' and hold that the act of sexual intercourse is against the woman's will when, from any cause, she is not in a position to exercise any judgment about the matter. Thus intercourse with a woman whose will is temporarily lost from intoxication, or unconsciousness arising from the use of drugs or other cause, or sleep, etc., is rape. As stated above, there are a few cases opposed to this view, but the great weight of authority is undoubtedly in favor of giving to the statute such a construction as that just indicated. We have to consider in this case, however, only that form of inability to consent which is presumed to arise from idiocy or imbecility."

As previously stated, we will not detail the evidence, but the whole setting as revealed by the evidence shows that the female was unconscious. Aside from the gruesome details, one witness testified: "They acted to me like they were all drunk, or they acted that way. I didn't see them drink anything. All of them acted that way." The sheriff, who was called and who arrived at the scene before the conduct of the accused terminated, testified: "Her clothing was just about as high as they can get. They would be up about that high [illustrating about the waist]. Her legs were exposed and her hips, not clear to her waist. They were exposed to up near the waist. Her condition with respect to drinking was apparently she had just waked up, the way I judge it. She had been drunk, she had that appearance."

To reverse the conviction under the evidence in this case would be, in our opinion, to hold that unlawful intercourse with a female who is unconscious from the use of intoxicating liquors is not rape. We have no quarrel with our colleague who interprets the evidence differently. The judge approved the verdict. We think this judgment should be affirmed.

Judgment affirmed. Broyles, C. J., concurs.