27 Fla. 387 | Fla. | 1891
This case,, one of rape, comes before us on a motion for a new tria1, the grounds of which, insisted upon here, are that the verdict was contrary to law, and
It is contended on behalf of plaintiff in error that the testimony does not show that the connection was consummated by force and against the will of the prosecutrix. The statute contemplates that the offence shall be “by force and against her will.” Sec. 36, p. 355 McClellan’s Digest; 2 Bish. Crim. Law, sec. 1113; Charles vs. State 6 English (11 Ark.), 389; State vs. Murphy, 6 Ala., 765. There must be a concurrence of these two ingredients. Cato vs. State, 9 Fla., 163, 184. If force was used and yet the carnal knowledge was not against the will of the female, the crime of rape has not been committed. In some states it has been held that there must be resistance to the extent of the woman’s ability. Thus in New York, in People vs. Dohring, 59 N. Y., 374, where the female was but fourteen years old, the decision is, that to constitute the crime of rape of a female over ten years of age, when it appears that at the time of the alleged offence she was conscious, had the possession of her natural mental and physical powers, was not overcome by numbers, or terrified by threats, or in such place and position that resistance would have been useless; it must also be made to appear that she did resist to the extent of her ability at the time and under the circumstances. See also People vs. Morrison, 1 Parker’s Crim. R., 625; People vs. Quinn, 50 Barbour, 128. In other states it is said that there must be the utmost reluctance and the utmost resist
In Commonwealth vs. McDonald, 110 Mass., 405, the trial judge charged that the act of the defendant must have been without the woman’s consent, and there must have been sufficient force used to accomplish his purpose; that the jury must be satisfied that there was no consent during and part of the act, and that the degree of resistance was frequently an essential matter for them to consider in determining whether the alleged want of consent -wa3 honest and real; but that there was no rule of law requiring a jury to be satisfied that the woman, according to their measure of her strength, used, all the physical force in opposition of which she was capable; and this charge was held by the Supreme Court to be appropriate and
Mr. Bishop in his work on Criminal Law, Vol. 2, sec. 1122, says it is plain that in the ordinary case where the woman is awake, of mature years, of sound .mind and not in fear, a failure to oppose the carnal act is consent, and though she objects verbally, if she makes no outcry and no resistance, she by her conduct consents, and the carnal act is not rape in the
It is not necessary now for us to elect between these two views, yet where the prosecutrix is of mature years and in possession of her faculties, we are inclined to think there is very much in the former of them to commend it.
The question here is whether or not the evidence can be said to be sufficient to show to the minds of any fair jury beyond a reasonable doubt that the act was done by force and against the will of the prosecutrix. The alleged offence, is shown to have been committed in the
If the girl is very young, says Mr. Bishop (sec. 1124), s.and of mind not enlightened on the question, this con
Though unquestionably a rape can be committed -upon a female under ten years of age, still the presumption where she is ten years of years or more, must, under a law like the first clause of our statute, be that her mind is “ enlightened on the queetion.” Where the female is fourteen years of age, the presumption is that she is so enlightened. That this presumption may be overcome by evidence, we do not doubt,-but there is no evidence to impair or overcome it in the case of this prosecutrix, and hence the jury would not have been justified in attributing the absence of resistance on her
In Regina vs. Day, 9 Car. & P., 722, a trial on the circuit before Justice Coleridge, the indictment was for attempting to carnally know and abuse a girl under ten years of ago, and for a common assault. The prosecutrix testified she was ten years old on a specified day in January, 1841, and her father, that he could not precisely state the time of her birth, he not being at home when she was born, and the mother being sick at the trial could not testify. This evidence of age being held insufficient, the cause proceeded on the charge of a common assault. The prosecutrix also deposed that she was coming up a certain street about seven o’clock when she met the prisoner, who accompanied her up a dark lane, which was on her road home,
In each of these cases, where the above doctrine has-, been invoked, except that of Regina vs. Day, the circumstances were either much more calculated to put her in fear, or there was clear proof of resistance, or-there was evidence that showed the prosecutrix was actually in fear. In the case of Regina vs. Hallett, 9 Car., & P. 748, the prosecutrix does not appear to have been under mature years. There the offence was committed by eight men, they having followed her from a public house to the door of her lodging, a brothel, whose door was fastened on the inside, they holding her with her back against the door, and the J udge giving, among other charges, the following : If there was non-resistance on her part, but it proceeded merely from her being overpowered by actual force, or from her not being able from want of strength to resist any longer, or that from the number of persons She considered resistance dangerous, and absolutely, useless, the full charge was made out; but if vou think under all
Considering the time and other circumstances under which the offending is shown to have occurred, that ’there is no room fora contention that resistance or outcry would have been useless, the presumption from her age that she was of an intelligent or understanding mind on the subject-, within the entire absence of evidence to the contrary, the failure to prove that there was actual fear, and the absence of any resistance, to say nothing of the impeachment of the reputation of the prosecutrix for truth and veracity by witnesses whose reputation on this score stands unimpeached, and of the indeiinitensss of the testimony on other’ points, we think the testimony is insufficient to sustain the verdict, and that the case should go back for a new trial, upon which the facts can be more fully inquired into. Where fear is relied upon to account for or supply the place of actual resistance, the testimony should show such circumstances as clearly justify the conclusion that it existed. None of the cases cited above, if we consider their circumstances, justify a conviction of
The judgment is reversed and a new trial granted.