
    Bird v. The State.
    Argued February 19,
    Decided February 27, 1900.
    Indictment for assault with intent to rape. Before Judge Seabrook. Effingham superior court. November term, 1899.
    
      H. B. Strange and B. W. Sheppard, for plaintiff in error.
    
      Livingston Kenan, solicitor-general, contra.
   Fish, J.

If, in the trial of a boy charged with the offense of assault with intent to rape, it be shown that the accused is under the age of fourteen years, a presumption, arises that he is physically incapable of committing the crime; and where there is no proof to rebut such presumption a verdict of guilty is contrary to the evidence and to law. Gordon v. State, 93 Ga. 531. The evidence in this case as to the identity of the accused with the assailant of the girl alleged to have been assaulted is by no means satisfactory.

Judgment reversed.

All the Justices’ concurring.  