Boggs

The defendant was charged with two acts of rape of a woman of the age of twenty-two years, alleged to be incapable, through unsoundness of mind, of giving legal consent to sexual intercourse. He was convicted on both counts and his motion for a new trial was denied. This is an appeal from the judgment of conviction and the order denying a new trial.

There is no contention that the defendant did not accomplish the alleged acts of sexual intercourse with the prosecutrix, who, as a result thereof, was pregnant at the time of the trial. The only ground urged for a reversal is that the evidence is insufficient to show that the prosecutrix was incapable of giving legal consent to such acts.

The mother of the prosecutrix was insane and was committed to one of the state hospitals in November, 1918. All of the witnesses agree that the prosecutrix is of subnormal mentality. She kept house on a farm for her father and brother for several years, doing the cooking and general housework and attending school during the same time. She was in high school until a short time before the trial. There is little evidence to show what progress she made in school, but one of her teachers in the high…