194 So. 2d 68 | Fla. Dist. Ct. App. | 1967
Appellant, who was defendant in the trial court, was charged by information with the offense of having made an assault upon a female child under the age of fourteen years in a lewd, lascivious or indecent manner, without intent to commit rape, as proscribed by statute.
Appellant first contends that the trial court erred in denying his motion for directed verdict made at the conclusion of the evidence on the ground that the evidence failed to establish one of the essential elements of the offense with which he was charged, to wit: “without intent to commit rape.” It is appellant’s position that one of the essential elements of the offense for which he was prosecuted is that the act of assault was performed without the intent to commit rape, and the burden rested on the State to prove this element of the offense beyond a reasonable doubt. Appellant’s position in this respect finds support in the decision rendered by the Supreme Court in State v. Sumner.
In its instructions to the jury the trial court charged that the verdict should be that of not guilty if it believed from the evidence that at the time of the offense defendant raped the prosecutrix, or that he assaulted her with intent to commit rape upon her. It is evident from the verdict that the jury rejected that evidence relating to the several offenses involving rape, and believed only that evidence which established that appellant had committed an assault upon the prosecutrix in a lewd, lascivious and indecent manner. Because of this state of the evidence, we conclude that the trial court was correct in denying appellant’s motion for a directed verdict as well as his post-conviction motion for a new trial.
We have carefully considered the remaining point made by appellant on this appeal, but find it to be without substantial merit. The judgment appealed is accordingly affirmed.
. F.S. § 800.04, F.S.A.
“Lewd, lascivious or indecent assault or act upon or in presence of child
“Any person who shall handle, fondle or make an assault upon any male or female child under the age of fourteen years in a lewd, lascivious or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of such child, without intent to commit rape where such child is female, shall be deemed guilty of a felony and punished by imprisonment in the state prison or county jail for not more than ten years.”
. State v. Sumner, (1946) 157 Fla. 371, 26 So.2d 336.