
    McCombs v. The State.
    No. 757.
    August 14, 1918.
    Indictment for rape. Before Judge Terrell. Coweta superior court. December 8, 1917.
    
      A. H. Freeman and W. L. Stallings, for plaintiff in error.
    
      Clifford Walker, attorney-general, C. E. Boop, solicitor-general, and M. C. Bennet, contra.
   Hill, J.

1. On the trial of one charged with the rape of a girl twelve years old, it was not error, as against any objection urged, to charge the jury: “Consider the stature, the constitution, the physical and mental development of the female, and determine whether or not the evidence shows that she was between the age of ten and fourteen, whether she was or not incapable of consenting to the act of sexual intercourse, if sexual intercourse was in point of fact had; and if you find she wag a child in stature, constitution, and physical and mental development, and that she was incapable of consenting, the accused would be guilty of rape, although the jury may find from the evidence that she made no objection to the sexual intercourse.”

2. In view of the entire charge, there is no merit in the assignment of error that the court failed to instruct the jury that “the burden of proof was upon the State to prove the female alleged to have been raped was incapable of consenting, it being undisputed under the evidence the female was over twelve years of age at the time of the alleged rape.”

3. The evidence was sufficient to support the verdict.

Judgment affirmed.

Ail the Justices concur.  