
    24880.
    Finney v. The State.
    Decided July 20, 1935.
    
      Feagin & Feagin, for plaintiff in error.
    
      Charles H. Garrett, solicitor-general, contra.
   Broyles, C. J.

1. The accused was convicted of assaulting a female, under the age of 14 years, with the intent to rape her. In his statement to the jury the defendant denied that he committed any assault, or any assault and battery, upon the female, and the evidence of the female, if true, proved the felonious assault as alleged in the indictment. In view of these facts the omission of the court to charge the jury on the law of assault, or assault and battery, was not error. Wade v. State, 11 Ga. App. 411 (5) (75 S. E. 494).

2. The indictment alleged that the accused had not been lawfully married to the female in question prior to his attack upon her. While there was no direct proof of this fact, the circumstantial evidence adduced was sufficient to establish it to the exclusion of every other reasonable hypothesis. Moreover, a girl under the age of 14 years can not lawfully contract marriage in this State. Code of 1933, § 53-102; Crapps v. Smith, 9 Ga. App. 400 (2) (71 S. E. 501).

3. While the alleged victim of the attack was the only witness to positively identify the defendant as the man who had mistreated her, her testimony was in many material respects corroborated, and the jury had the right to believe her testimony. The verdict was authorized by the evidence, and the refusal to grant a new trial was not error for any reason assigned.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.  