By the common law of England, a boy under fourteen years of age cannot be convicted of rape. In Hale’s Pleas of the Crown it is said that an infant under that age “is presumed in law to be unable to commit a rape, and therefore, it seems, cannot be guilty of it; and though in other felonies militia supplet cetatem in some eases, , . . yet it seems as to this fact the law presumes him impotent, as well as wanting in discretion.” (Vol. 1, p. 629.) This presumption of physical incapacity is based upon the fact that in England puberty is very seldom attained, among males, under that age. The age of puberty, however, is governed to a great extent by race and climate, and it is well known that in this country, and especially in the southern part of it, instances of puberty among boys under fourteen years of age are not uncommon. If the common law rule on this subject were adhered to in this State to the extent of treating the presumption as conclusive, it would afford immunity to a large number of persons capable of committing rape or who have actually committed it, and thus in many instances defeat the ends of justice. The common law was adopted in this State so far only as applicable to the conditions existing here (see Turner v. Thompson, 58 Ga. 271); and there being no statute of Georgia establishing any presumption of this kind, the *534rule in question, in so far as it treats- 'the presumption as conclusive, cannot be regarded as a part of the law of this State. The rule has to -this extent, been held inapplicable in other States. -(People v. Randolph, 2 Park. Crim. Rep. (N. Y.) 174; Heilman v. Commonwealth, 84 Ky. 457, 4 Am. State Rep. 457; Williams v. State, 14 Ohio, 222, 45 Am. Dec. 526; Wagoner v. State, 5 Lea, 352, 40 Am. Rep. 36; and see McKinney v. State, 29 Florida, 565, 30 Am. State Rep. 140.) In hone of the States, however, except Louisiana, so far as we have been able to ascertain, has it been held, that there is no presumption at all as to the incapacity of boys under that age; and the reason assigned for so holding in Louisiana is, that in that State “a large majority of youths attain puberty before the age of fourteen years.” (State v. Jones, 39 La. Ann. 935.) It cannot be said that this is so in Georgia; on the contrary, it is quite probable that a large majority of youths in this State do not attain puberty until after that age. We think the proper rule, as applicable to the conditions existing in this State, is that announced by the courts of other States in the decisions above referred to, namely, that there is a presumption of physical incapacity as to .all boys under the age of fourteen, but that this is merely &-prima-facie presumption, subject to be rebutted by pi’oof. Thus modified, we think the presumption is just and- reasonable, certainly not less so than the presumption recognized by pur law as to the mental incapacity of boys under that age. There has been some question as to whether this rule applies also to assault with intent to rape, but we think the better opinion is that it applies to both offences. See discussion of this question in People v. Randolph, 2 Park. Crim. Rep. (N. Y.) 213; see also Rex v. Groombridge, 7 Carr. & Payne, 582; Rex v. Eldersham, 3 Id. 396; Rex v. Phillips, 8 Id. 736; Williams v. State, 14 Ohio, 222; 1 Bishop, *535Grim. Law (ed. 1892), §746(2). The evidence in this case being uncontradicted that the accused was under fourteen years of age at the time the offence was alleged •to have been committed, we think the court ought to have given in charge the instruction requested on this subject, as set out in the 4th ground of the motion.for & new trial. There being no proof of actual capacity, and there being room for doubt, under the evidence, as to whether the accused intended or was attempting to commit rape, this error requires a reversal of the judgment denying a new trial.
. 2. IJpon the trial of a boy between the ages of ten and fourteen years for any offence, it is not error to give in charge to the jury section 4294 of the code. That section relates alone to mental capacity.
Judgment reversed.