
    Pounds v. The State.
    Simmons, J. — Where, upon the trial of an indictment for rape alleged to have been committed upon a female between the ages of ten and eleven years, it appeared that sexual intercourse was accomplished, and the main question at issue, therefore, being whether the female was in fact capable of consenting to the act or not, and the court having several times, in substance, instructed the jury that although she was over ten «years old, yet if she was a child in stature, constitution and physical and mental development, and they believed from her age and appearance that she was incapable of consenting, the accused would be guilty, although she made no objection to the intercourse, it was also the duty of the court to charge the jury that if they believed she was capable of consenting and did actually consent, the accused should be acquitted. The failure to so charge is cause for a new trial in a close case like the present, taking this omission in connection with the fact that the court allowed the solicitor-general, in his concluding argument, to state to the jury, over objection of counsel for the accused, that “ the age of consent in many States is higher than in this State, and should be made higher here; and a committee of ladies waited on the judiciary committee of the last house of representatives and urged that the age of consent be raised to twelve years in this State.”
    October 15, 1894.
    Indictment for rape. Before Judge Janes. Haralson superior court. July term, 1894.
    E. S. Grieeith and Edwards & Edwards, for plaintiff' in error. J. M. Terrell, attorney-general, and A. Richardson, solicitor-general, contra.
    
   Judgment reversed.  