¶1dissenting. Times without number this court has held that it is without jurisdiction to set aside a .verdict approved by the trial judge, if there was some evidence in support of the finding of the jury, and if no material error of law was committed. Adhering to this well-settled rule, I can not consent to reverse the judgment of the trial judge refusing a new trial upon the record now before us. In my opinion there was ample evidence to authorize the jury to find that the injured female was an imbecile, incapable of exercising any will in regard to the attempted *204intercourse. If she was mentally incapable of consent to sexual intercourse, such intercourse with her would have been rape, and an attempt to have intercourse would be assault with intent to rape. According to the evidence which the jury had before them, this girl, a little more than fourteen years of age, had never tried to count fifty; her father had tried to teach her to tell the time of the day upon a clock, but she had never been able to acquire even this simple attainment. A physician, testifying as an expert, said she was no more developed than a child eight years of age. The father and mother of the child both testified to circumstances which, in my opinion, fully authorized the jury to conclude that she was an imbecile. Who better than they (if they are credible witnesses) could state the facts? It is true, in stating the conclusion they reached from the circumstances which they detailed, they nsed no stronger expression than “weak-minded,” but the use of this expression is illustrated both by the usual significance of that word in common parlance and by that feeling of commiseration inspired by parental tenderness and a natural disinclination to disclose the affliction of their, offspring. I think the jury were fully authorized to find that this child, who had been sent to school three separate times, covering in all a period of more than eighteen months, and yet had not been able to learn all the alphabet, — this child who could not tell the time upon a clock, although her brothers, much younger than herself could do so, and who “read” her books upside down, and whom her parents (dissuaded by affection from using a harsher term) described as “weak-minded,” was, in fact and in law, an imbecile. Above all this, the jury saw the girl as a witness; they heard her answers to the questions upon direct and cross examination. The jury had the opportunity of looking into the face, the eyes, and the very soul of the person whose imbecility is at issue in this case, while we can only view it in the 'cold lines of the transcript of the record.
¶2The defendant had boarded in the house of this child’s father. No man knew better than he her weakness. He inveigled her into the disgraceful position in which she was seen by the three young men (if it be assumed that she assented or attempted to assent to illicit intercourse) by the promise of giving her a nice present. This is one version of the case. But what rule of law is there under which it can be held that the jury did not have the right to *205believe the testimony of the girl upon this point, and find that she was induced by the promise of a present to go into the woods with the defendant, but that when the crucial moment arrived, when the chastity of her person was to be violated, she resisted to the extent of her limited ability. There is a period of at least five minutes which is covered only by the testimony of the alleged injured female and the statement of the defendant. Why should not the jury have believed her ’version of what happened during these five minutes, in preference to that of the defendant, — a man of years and experience, whose own admission places him in the disgraceful position of attempting to debauch a child, at best weak and unfortunate, and a member of a family in whose home he had been domiciled. However, without regard to conflicting testimony as to the details of the offense charged, I rest my dissent upon the proposition that the testimony shows that the girl alleged to have been assaulted was in law incapable of consenting to sexual intercourse. It is uncontradieted (unless her appearance before the jury contradicted it) that this girl is no better developed, mentally or physically, than a child of eight years. It is well said, in the opinion of the majority, that the age of consent in this State is so low as to be an impeachment of our civilization. Unquestionably the age of consent in this State should be raised. But what practical protection would be afforded by raising the age of consent, if the law did not in its humanity protect those who, regardless of their age, are, through imbecility, unable to consent? This protection — a defense against their own weakness — our law has ever undertaken to give to that unfortunate class who are of -themselves incapable of exercising a rational choice. Even mature women of as little mentality as this girl are protected by law, not only against the animal lust of members of the opposite sex, but against themselves as well; and men who, knowirfg of their imbecility, take advantage of their helpless condition to gratify lustful propensities are guilty of rape, even if no more force be used than is required to perform the carnal act, and no resistance be offered by the female. To quote the language of the illustrious Chief Justice Campbell, in Regina v. Fletcher, 8 Cox C. C. 248 (L. R. I. C. C. 39) : “It would be monstrous to say that these poor females are .to be subjected to such violence, without the parties inflicting it being liable to be indicted. If so, every drunken woman,- returning from *206market, and happening to fall down on the roadside, may be ravished at the will of the passers-by.”
¶3One of the most important elements entering into the determination of the girl’s imbecility naturally must have been her appearance and demeanor upon the stand. The judge and the jury saw her upon the stand, and we can not put ourselves in the place of the judge and the jury. It is well settled that one may be convicted of rape of a mature woman who fails to resist because of imbecility. This girl was but little more than fourteen years of age, and there was evidence that she was weak in mind. As was said by the Supreme Court in Gore v. State, 119 Ga. 423 (46 S. E. 673, 100 Am. St. R. 182), “The jury are constituted by law the judges of all these matters. They have by their verdict solemnly affirmed that the girl’s intellect was so weak that she was incapable of consenting to the act of sexual intercourse, and we do not feel disposed to usurp their functions, and, at this distance, upon a printed record, without ever having seen the girl, declare that we are better judges of the girl’s mental condition than the members of the jury were. The trial judge also saw the girl and heard her testimony, and he is satisfied with the verdict.”
¶4I am fixed in the opinion that there was ample evidence to authorize the jury to find that Lillie Jones was mentally incapable of expressing any intelligent assent or dissent, or of exercising any judgment in the matter of the sexual intercourse proposed by the defendant, that the case is fully controlled by the ruling of the Supreme Court in Gore v. State, supra, and that the judgment refusing a new trial should be affirmed.