have upon you if you were to hear one of your daughters in her bedroom at that hour of the night? Consider it in the light of human experience; see what sort of cries she really made, and consider whether such cries would so excite man as to cause him to run over chairs and up into chimneycorners, as that he could not tell a man when he saw him, and tell who he was when he got within seven feet of him, if you believe that evidence of the father. Take the whole case, consider it, and see what the truth is, the object of the jury being to reach the truth of the case." O. G. Gurley, for the plaintiff in error. 329 BLECKLEY, C. J. 1. As defined by the code, section 4357, an assault is an attempt to commit a violent injury on the person of another. Where a rape is intended, the injury contemplated can be inflicted only by actual contact of the sexual organs of the man with those of the woman. In order for an assault with intent to rape to be committed, is it necessary that the persons of the two should be in such proximity as that the organs of the male shall be within what may be termed "striking distance" of the organs of the female? Or, is the virile member to be treated as a gun which is harmless until brought within "carrying distance" of the target? We think not. It seems to us that where rape is intended, and the would-be ravisher, with the purpose of presently executing his intention, enters the bedroom of the woman when she is asleep, and mounts upon her bed, thus bringing himself near enough to seize at will her person or some part of it, the attempt to commit a violent injury upon her is complete. Certainly, when matters have proceeded thus far, she would be in imminent danger of being ravished. Nothing but a change of intention on the part of her assailant, the interference of some third person, or her own resistance, would be likely to shield her. No actual touching of the woman's person is necessary to complete the assault. There need be nothing more than the intention to accomplish sexual intercourse presently by force, and the active prosecution of that intention until a situation of immediate, present danger to the woman is produced. If, in the case before us, the accused, under the excitement of lust and with the intention of gratifying it by force, entered the bedroom of the girl near midnight, 330 and got upon the bed in which she was sleeping, within reach of her person, for the purpose of ravishing her, he committed an assault upon her, even if he did not actually touch her except casually and incidentally whilst she was in the act of leaping out of bed to escape from him, or even if he did not touch her at all, he being prevented from consummating his design by her outcry and by the intervention of her father who occupied an adjoining room. Under the evidence in the record, the acts done by the accused, if they were accompanied with an intention to ravish, were quite sufficient to constitute an assault. 2. The doctrine of the court's charge to the jury that, upon the question of intention, social customs founded on race differences, and the fact that the man was a negro and the girl a white person, might be taken into consideration, is undoubtedly correct. There was nothing in the evidence to indicate that the girl was not virtuous, or that she had held out any encouragement to this negro, or to any other person, white or black, to enter her bedroom for illicit intercourse. Not the faintest trace of a reason appears on which he could have founded any hope or expectation of consent. Surely it was legitimate for the jury to note any departure from the customary modes of visiting which was involved in a nocturnal entrance by a negro man into the bedroom of a white woman during the hours usually devoted to sleep. The difference of sex, to say nothing of the difference of race, would afford ample ground for directing attention to this element of the case. 3. The charge of the court complained of was substantially correct throughout, and no part of it trenched unduly on the province of the jury. We find nothing in it which challenges more than mere verbal criticism. 4. We confess to a serious doubt upon our own minds 331 as to whether the accused really intended to commit rape. Two facts strongly indicate the contrary: one of these being that he knew the father of the girl occupied an adjoining room, and was near enough at hand to protect her; and the other being that, instead of seizing her while asleep, he paused upon the bed, and called her by name. Why he should have done this, if his mind was made up to violate her person, we are at some loss to understand or even to conjecture. But the workings of a criminal mind, especially while under the dominion of brutal passion, are often mys terious. A bad man who has procured his own consent to commit a great outrage will frequently take great risks and prosecute his criminal enterprise in the most foolish manner. Desperation and folly are close relatives, and are found not seldom in each other's company. Guilt is shrewd only when it is timid; when it becomes bold and reckless it is in no mood to consult discretion or to heed the dictates of prudence. The jury had a right to interpret the prisoner's conduct in the light of this trait of vicious human nature, and so doing, there was no violation of sound logic in reaching the conclusion at which they arrived. They might well have doubted, as we do, whether there was an intention to ravish, but we cannot say that twelve honest, fair-minded men might not be free from any reasonable doubt on the subject. We cannot, therefore, do otherwise than accept the verdict as nega tiving the existence of any such doubt in the jury-box, the presiding judge having approved the finding. Had we been present and witnessed the whole trial we might have been no less satisfied than he was. Our conclusion is that the evidence was sufficient, though barely sufficient, to uphold the verdict, and that in denying a new trial no error was committed. Judgment affirmed. ASSAULT WITH INTENT TO RAVISH-SUFFICIENCY OF EVIDENCE TO CONVICT.-Evidence of an intent to commit rape is sufficient to be submitted to the jury when it shows that the prisoner entered a room where a young lady was sleeping, by means of raising a window, went to the bed, grasped her ankle, and hastily retreated, without any attempt at explanation when she screamed: State v. Boon, 13 Ired. 244; 57 Am. Dec. 555. On a trial for assault with intent to commit rape, the evidence to be sufficient to convict must show such acts and conduct of the accused as to leave no reasonable doubt of his intention to gratify his lustful desire against the consent of the female, notwithstanding resistance on her part: Jones v. State, 90 Ala. 628; 24 Am. St. Rep. 850, and note, with the cases collected. See the note to State v. Lung, 37 Am. St. Rep. 511. WOODRUFF v. GRADDY. [91 GEORGIA, 333.] SALES-WHEN EXECUTED-DELIVERY.—If, under a contract for the sale of wheat to be delivered by the seller to the purchaser at his place of business, the wheat is consigned to the order of the seller, and bills of lading taken accordingly, after which, and before the wheat arrives at its destination, the purchaser, upon a warranty from the seller that it is equal to a certain sample, pays the greater part of the purchase price, and receives from the seller the bills of lading duly indorsed, and which control the possession and delivery, the sale is executed, and the title passes to the purchaser. SALES-BREACH OF WARRANTY-DAMAGES.-A purchaser of goods at an executed sale and upon warranty of quality by the seller does not, by receiving the goods without inspection, and retaining them after discovering their inferior quality, waive his right to recoup his damages for a breach of the warranty in an action for the purchase price. Battle & Gilbert, for the plaintiff in error. F. D. Peabody and J. H. Worrill, for the defendant in error. 334 LUMPKIN, J. In October, 1890, Graddy & Son, of Versailles, Kentucky, sent to George W. Woodruff, of Columbus, Georgia, by mail, a sample of wheat, accompanied by a letter offering to sell him ten thousand bushels to be delivered in November, "weights and goods warranted to within one per cent." Woodruff replied by telegram asking the price of ten thousand bushels equal to sample, and Graddy & Son by telegram quoted five thousand bushels at one dollar and seventeen cents; whereupon Woodruff telegraphed them saying: "Accepted, like sample and sweet. Await shipping instructions by mail." On the same day he offered, by telegram, one dollar and sixteen cents per bushel for an additional lot of four thousand bushels "equal to sample," and this offer was accepted. He also wrote a letter saying that he accepted the five thousand bushels at one dollar and seventeen cents, and stating therein "the wheat must be equal to sample, sweet and sound." Some additional telegrams and letters passed between the parties relating to the order for four thousand bushels, but these are not pertinent to the present discussion. Graddy & Son shipped the lot of five thousand bushels, and, according to Woodruff's evidence, about eight hundred bushels of the four thousand, all consigned to their own order, and drew on Woodruff for the price of the wheat shipped, attaching to their draft indorsed bills of lading which controlled the possession and delivery AM. ST. REP., VOL. XLIV. -3 of the wheat. The draft was presented before the arrival of the wheat, and Woodruff refused to pay it; whereupon G. C. Graddy, one of the firm of Graddy & Son, went to Columbus to see him about the matter, and insisted upon a payment on the contract. Woodruff still objected to paying the money until the wheat arrived. Graddy then assured him that the wheat shipped was as good as the sample, and upon the faith of this assurance Woodruff paid ninety cents a bushel upon the wheat which had been shipped, and 335 Graddy delivered to him the bills of lading, which entitled Woodruff to receive the wheat from the railroad upon its arrival. This, we think, constituted an executed and complete sale of the wheat. By giving up the indorsed bills of lading Graddy & Son parted with their title to and control of the wheat, and it became the absolute property of Woodruff. No other person then had the right to demand the wheat from the railroad company, and undoubtedly it would have been subject, as the property of Woodruff, to a judgment or other lien against him. Whatever may have been the legal effect of the letters and telegrams above referred to, and which led up to the consummation of the sale, we think the final terms thereof were embodied in the agreement made between Graddy and Woodruff at the time the latter paid the money and received, in return, the bills of lading. If Graddy's assurance did not, under the circumstances, amount to an express warranty on the part of his firm that the wheat then en route to Columbus was as good as the sample in question, it certainly did at least raise an implied warranty to this effect; and the sale, as already shown, being executed, it was immaterial, for the purposes of this case, whether the warranty was express or implied. After this transaction, the wheat, in contemplation of law, was in Woodruff's possession, and was his property. What he did really amounted to an acceptance of it without inspection. When it finally arrived, no matter what its condition may have been, it was his wheat, and he had no right to rescind the contract and refuse to use it, nor was he under any obligation to offer to return it, but did have the undoubted right to stand upon the warranty he had received: Code, sec. 2652; Clark v. Neufville, 46 Ga. 261. In the case cited it was also held, that, if there be fraud in the sale, the rule is different, and the vendee 336 may rescind. The element of fraud, as a basis of rescission, is not referred to in the second head-note, in which it is |