1. A conviction of assault with intent to rape will not stand unless the evidence plainly discloses that the assault was made with intent to have sexual connection forcibly and against the will of the female involved. Where the female is under the age of consent, it will be presumed that the commerce, or an intent to engage therein, was forcible and against her will.
2. When the facts from which the inference of guilt or innocence is to be drawn are all established by direct proof, and only the intent with which the alleged criminal act was committed, or the degree of criminality, must be inferred, the trial judge, in the absence of a timely request, is not required to give in charge to the jury the usual rule applicable to circumstantial evidence, to the effect that, if the proved facts are consistent with innocence, the defendant should be acquitted; this for the reason that every one is presumed to intend the natural and legitimate consequences of his acts.
DECIDED JANUARY 28, 1947. The defendant was indicted for assault with intent to rape. He was found guilty as charged, and his motion for new trial as amended was overruled. To this ruling he now excepts.
The young girl alleged to have been assaulted testified in part as follows: "I am eight years old. . . Something happened to me in the picture show. . . He [the defendant] asked me where I lived and what was my name . . and then he put his arm around me, and a little while later he gave me a nickel, and a little while later he gave me another nickel. There was one empty seat between him and me, and he pulled me over in the seat next to him, and then he gave me a dime, and he pulled down my panties and *Page 724 started feeling of me, and I started kicking, and I told him to turn me aloose, and he said he would let me aloose if I would go and get candy and come back, and I didn't get candy. I ran right out of the show."
On cross-examination, she testified: "Two little girls were sitting one seat from me in the show. . . And they kept looking at me and embarrassing me so until I went and got several rows from there and then the man came and sat one seat from me. . . The picture was playing. A pretty good many folks were there. I was sitting on an end seat, eight or nine rows from the back. Other folks were sitting four or five seats from me. . . I didn't kick him [the defendant], I kicked the seat. . . I was sitting up in the seat all of the time. He tried to feel of me while I was sitting in the seat. He never did pull me over in his lap, or anything like that. . . He didn't make any scratches on me or hurt my skin, or tear my clothing. He kept his hands on me for about two or three minutes."
Another young girl of tender years testified that the defendant had conducted himself in a similar manner towards her in the same theater on a previous occasion. She stated: "I went to the picture show and sat down by a man, and he asked me if he could feel of my legs, and I told him `No,' and he gave me a nickel and asked me again, and he done it anyway; I told him I was going to get some water, and instead of getting some water, I went and sat down on the other side of the picture show. . . He didn't keep his hand there so long. He didn't hurt me."
Still another young girl, six years of age, testified in part as follows: "This man [the defendant] told me to come and sit with him, and I told him to wait and see if I could find my cousin, and I went back and sat with him, and he put his hands on my leg. . . He didn't put his hand anywhere except on my leg."
On re-direct examination, the child alleged in the indictment to have been assaulted testified as follows: "Mr. Horton pulled me as close to his seat as he could get me. He caught me by my neck when he pulled me over. His body was pretty close to mine. I was by the arm of his seat. [The evidence discloses that the seats in the picture show had arm rests and there was always one of these between them.] He caught my little privates and put his hand in it. He pulled my britches down." *Page 725
On re-cross examination, she stated, "I sat on the seat all of the time. He didn't pull me off of the seat, but over by the arm, and he pulled me in the middle seat. He did nothing except feel of me, like I told the jury. He didn't hurt me at all." 1. A conviction of assault with intent to rape will not stand unless the evidence plainly discloses that the assault was made with intent to have sexual connection forcibly and against the will of the female involved. Dorsey v. State,108 Ga. 477 (1) (34 S.E. 135). Where the female is under the age of consent, it will be presumed that the intercourse, or an intent to engage therein, was forcible and against her will.Williams v. State, 15 Ga. App. 306, 308 (82 S.E. 938). Therefore, the only real question in this case is whether the accused intended to attempt sexual connection. If he did, the crime of rape would have been committed by very slight penetration, and even though the sexual act had not been completed by an emission; but, on the other hand, unless it clearly appears that the intent of the accused was to have sexual intercourse, he could not lawfully be convicted of assault with intent to rape, no matter how aggravated the character of the assault and battery. Williams v. State, supra. The particular criminal intent here in question, that the defendant intended to have carnal knowledge of the child, must be proved. If the defendant's conduct points to one criminal offense with as great a degree of certainty as another, that which is the least heinous will be presumed to have been intended. This follows logically from the presumption of innocence which the law raises in favor of a person charged with crime. Dorsey v. State, supra. A fondling of the girl, such as that testified to by the State's witnesses, while both the girl and the defendant were attending a picture show in the daytime and while other persons were in seats near them, would have been a battery and would have been a greater outrage than to touch her in anger, and equally a breach of the peace. Goodrum v. State, 60 Ga. 509, 511. In the instant case, we can not say that the evidence points with a greater degree of certainty to an intention to have carnal knowledge of the child than to an unlawful imposition of his hands upon her in lust.
Notwithstanding the insidious approach and vile tampering with *Page 726 the person of this young girl, we are of the opinion that the evidence does not show beyond a reasonable doubt that the defendant intended to have carnal knowledge of the child. An indecent assault such as that shown by the evidence in this case, without question, has a tendency to debauch and to undermine the virtue of young girls. The defendant in the instant case has undoubtedly committed an offense against the State and should be punished, but in view of the surrounding circumstances at the time of the act and the absence of evidence of an overt act, beyond that of fondling, which would indicate the intention of the defendant to have carnal knowledge, we can not say that the unlawful imposition of the defendant's hands, under the circumstances disclosed by the evidence, would authorize the conviction of the accused of assault with intent to rape. Scott v. State, 63 Ga. App. 353 (11 S.E.2d 64).
2. In the special ground of the motion for new trial, the defendant insists that the failure of the trial court to charge the law of circumstantial evidence was error. There is no merit in this contention. "When the facts from which the inference of guilt or innocence is to be drawn are all established by direct proof, and only the intent with which the alleged criminal act was committed, or the degree of criminality, must be inferred, the trial judge, in the absence of a timely request, is not required to give in charge to the jury the usual rule applicable to circumstantial evidence, to the effect that, if the proved facts are consistent with innocence, the defendant should be acquitted; this for the reason that every one is presumed to intend the natural and legitimate consequences of his acts."Reddick v. State, 11 Ga. App. 150 (3) (74 S.E. 901). Under this ruling, and the facts of the instant case, the failure to charge upon the law of circumstantial evidence, in the absence of a timely and appropriate written request, was not error. Hester v. State, 32 Ga. App. 81 (2) (122 S.E. 721); Fitchett v.State, 52 Ga. App. 87 (2) (182 S.E. 412).
Judgment reversed. Broyles, C. J., and Gardner, J., concur.