Propes v. State

"A female over fourteen years of age is presumed to possess sufficient mental capacity to intelligently assent to or dissent from acts of sexual intercourse; and where in a rape case [or in an assault with intent to rape case] the contention of the State is that a woman above that age did not possess such intelligence, the burden rests upon the State to establish this fact."

DECIDED NOVEMBER 27, 1942. J. H. Propes was indicted for rape. On the trial the State abandoned that charge and asked only for a conviction of the offense of an assault with intent to rape. A verdict for the latter offense was returned; the motion for new trial was denied, and that judgment was assigned as error.

The undisputed evidence disclosed the following facts: The female in question was fourteen years and a few months old on the date of the alleged assault; she had suffered a brain injury at her birth and was deficient in her school studies, but she continued to attend school, and on the day of the alleged assault had returned from school in Atlanta and stopped at the building where her mother was employed and gotten from her the key to their house, where she lived with her mother and father. While she was standing on the street waiting for the street-car to come by and carry her home, the defendant approached her and asked her name and where she was going. She wrote her name and telephone number on a piece of paper and gave it to him. She had never seen him before, and it is inferable from the evidence that he had never seen her before. She and the defendant got on the street-car together and rode to her home. Her father and mother were away, and nobody was in the house. She opened the door with her key, and she and the defendant went into the house. She testified that she lay down on the bed, and that the defendant got on top of her and attempted to have sexual intercourse with her. Her testimony as to whether he actually had such intercourse or merely attempted to have it was vague and inconclusive, but her testimony demanded a finding by the jury that she had freely and willingly consented to such intercourse. No other person was present in the house or saw them while they were on the bed. However, the State contends that the evidence shows that the female, although more than fourteen years old, and although she consented to the intercourse, was an imbecile, and was mentally incapable of expressing any intelligent assent or dissent to acts of sexual intercourse; and therefore the defendant's conviction was authorized; and Smith v. State, 161 Ga. 421 (2) (131 S.E. 163), is cited to sustain that contention. Headnote 2 of that case reads as follows: "A man who has sexual intercourse with an imbecile female, who is mentally incapable of expressing any intelligent assent or dissent, or of exercising any judgment in the matter, is guilty of rape, though no more force is used than is necessary to accomplish the carnal act, and though the woman offer no resistance." However, in headnote 2 (a) of that decision, it is stated: "A female over fourteen years of age is presumed to possess sufficient mental capacity to intelligently assent to or dissent from acts of sexual intercourse; and where in a rape case the contention of the State is that a woman above that age did not possess such intelligence, the burden rests upon the State to establish this fact." The court further held in that case that the evidence was sufficient to authorize the jury to find that the female was an imbecile; and headnote 3 said: "In such a case the true test of the mental capacity of the injured female was, not whether her mental capacity was below that of a normal girl fourteen years of age, but whether she possessed the mental capacity required under the principle announced in the second headnote above."

In the instant case the testimony did not authorize the jury to find that the female was an imbecile or that she was mentally incapable to intelligently assent to an act of sexual intercourse. On the contrary, the evidence authorized only a finding that she was backward in her school studies, and that her mental capacity was below that of a normal fourteen-year-old girl. It is true that several of her teachers testified that in their opinions she had the mentality of a child of nine or ten years of age, but their opinions appear to have been based upon the fact of her backwardness in her school studies. Moreover, it clearly appeared from the girl's testimony, both on the direct and the cross-examinations, that she was not an imbecile, or an idiot, but merely that her mental capacity was below that of a normal girl of her age. Furthermore, in the Smith case, supra, the record shows that Smith was a longtime neighbor of the injured female, and knew that she was an imbecile before and when he had sexual intercourse with her.

In the instant case, even if it be conceded that the girl was an imbecile, the uncontradicted evidence disclosed that she and the defendant had never seen one another before the day of the alleged assault, and there is no evidence that the defendant knew or could have known of her mental disability, the evidence being silent as to her size and appearance. We do not think that the ruling in the Smith case, supra, should be extended to cover the facts of this case. However, as said in that case, the burden was on the State to establish the fact that the female did not "possess sufficient mental capacity to intelligently assent to or dissent from acts of sexual intercourse;" and the State failed to carry that burden. In our opinion the verdict was unauthorized, and the overruling of the general grounds of the motion for new trial was error. This ruling being controlling in the case the special assignments of error are not considered.

Judgment reversed. MacIntyre, J., concurs.