40 Fla. 178 | Fla. | 1898
Plaintiff in error was indicted in the Circuit Court for Duval county for the crime of rape, and upon trial was convicted of an assault with intent to commit rape. The sentence imposed by the Circuit Judge was twenty years in the penitentiary. The charging part of the indictment is “that one George Barker, late of the county of Duval and State of Florida, on the 17th day of January, in the year of our Lord one thousand eight hundred and ninety-seven, in the county and State aforesaid, with force and arms in and upon one Mabel Bettelini did make an assault, and her, the said Mabel Bettelmi, then and there feloniously did ravish and carnally know, forcibly and against the will of her, the said Mabel
The first error assigned here on the record brought up by writ of error is, that the court erred in refusing to give to the jury the seventh instruction requested by the defendant as follows, vis: “You are instructed that while under our law it is not necessary upon a trial for rape to specifically prove emission, yet the circumstances must be such as infer that emission did take place.” The statute provides that whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of ten years, shall be punished by death, or by imprisonment in the State prison for life. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only. It is not now necessary for the State to prove emission in order to sustain a charge of rape. Penetration alone is sufficient. Regina v. Allen, 9 C. & P. 31; Ellis v. State, 25 Fla. 702, 6 South. Rep. 768; Brauer v. State, 25 Wis. 413; Pennsylvania v. Sullivan, Addison (Pa.), 142; State v. Hargrave, 65 N. C. 466.
Another assignment of error is the refusal of the court to give the jury the following instruction requested by the defendant, vis: “If after a comparison and consideration of all the testimony in the case, there remains upon the mind of any one of your number a reasonable doubt as to the truth of the charge as laid in the indictment, then under your oaths as jurors, you can not convict the defendant.” In the general charge the court instructed the jury that “the accused is always presumed to be innocent of the offense charged until he is proved guilty, and to overcome this presumption ■ and
It is'insisted that the court erred in refusing to give the following instruction, vis: “That a female outraged should seek the first opportunity to complain of same, and the fact that she does not complain immediately, is material in the question of giving consent on the part of the party making the charge.” We are of the opinion that the court sufficiently covered the ground of this-charge in the sixth instruction requested by the defendant, and that there was no error in the ruling.
The court refused to give this charge, and the ruling is assigned as error, vis: “You are charged that it is your duty to be cautious against convicting the defendant for rape, or attempting to commit rape, on the testimony of the prosecutrix alone, not supported by other evidence, direct or circumstantial.” Whether it would be error for the court to refuse to give such a cautionary charge in a case where there was no corroborative evidence, either direct or circumstantial, of full proof of the crime on the part of the prosecutrix, it is not necessary to decide. The charge requested implies, and it is calculated to impress the jury with the view, that there was no testimony 'in the case, direct of circumstantial, to support the evidence of the prosecutrix. The statements of the accused made to third parties in reference" td the charge against him,' and which 'were pukin' evidence, tended to support, in part, at least, thé evidence given by the prosecutrix. The rule in this
It is further insisted that the court erroneously, struck from the eighth and ninth charges the words “and acquit him.” The bill of exceptions does not show that the words mentioned were struck out of the charges. As appears from the charges given there was no erasure of the words, and there is nothing in the record to show us that they were erased. It is true that in the motion for a new trial, overruled, there is a ground stated that the court struck out said words, but this alone is no evidence of the facts there recited. Neither is there anything to show, as claimed by counsel for the accused, that any of the charges were taken by the jury to their consultation room.
The only ground in the motion for a new trial not already considered is, that the evidence was not sufficient to support the verdict. The finding was for an assahlt with intent to commit rape. If the assault was with intent to commit the principal offense, the jury ¿ould have rendered the verdict they did, although the testimony may not have satisfied them beyond a reasonable doubt that at the time the offense was committed there was such want of consent as to authorize a cónviction for the higher offense. This is expressly decided in the case of State v. Cross, 12 Iowa, 66, S. C. 79 Am. Dec. 519. Of course the assault must be made with intent to ravish and carnally know the female assaulted at all events, ánd notwithstanding any resistence on- her part, and if what the accused did whs with consent, the' female being over ten years, there can be
The jury doubtless did not believe that penetration was sufficiently proven, but it can not be said that they had rio right to conclride .beyond a reasonable doubt that an attempt to penetrate had been made. The point of weakness in the State’s case is on the question of resistence or consent.' To what extent the girl was enlighteried about such matters is not disclosed further than what she states in her testimony before the jury. She testified that' after getting into the room the accused first took off orie of her under garments, and she was asked if she objected, and replied that she did not know
Two questions are presented by a motion in arrest of judgment: The first one is that the indictment does not allege that the person upon whom the assault was made was a female. There is no direct allegation in terms that Mabel Bettelini was a female, but that she was, is sufficiently stated. The name “Mabel,” and the pronoun “her,” directly apply to a female. In defining the crime of rape the statute employs the terms, “whoever ravishes and carnally knows a female,” &c., and it is always better to allege directly that the person assaulted was a female. The authorities, however, clearly sustain such an indictment as the one before us, and we pronounce it sufficient. Hill v. State, 3 Heis. (Tenn.) 317; State v. Hussey, 7 Iowa, 409; Taylor v. Commonwealth, 20 Gratt. 825; State v. Warner, 74 Mo. 83; State v. Hammond, 77 Mo. 157. The other ground of contention is that as the jury found a verdict for an assault with intent to commit rape, the Circuit Court was ousted of its jurisdiction, and further proceedings could
Our conclusion is that the Circuit Court committed no error in overruling the motion in arrest of judgment.
Let the judgment be affirmed.