29 Fla. 486 | Fla. | 1892
Caesar Hunter, the plaintiff in error, at the October term, 1891, of the Criminal Court of Record for Duval county, was tried upon an information and convicted of the charge of “assault with intent,to rape,” and being sentenced to ten (10) years in the penitentiary, after refusal of his motion for new trial, brings his case here upon wait of error. As the evidence for the State is not voluminous, and as we have some comments to make upon its sufficiency for conviction, we will give it in full as it appears in the record.
Lucy Biggs, the prosecutrix, for the State testified as follows : “ My name is Lucy Biggs ; I live in the city of Jacksonville, Florida. Some time in June last ■T was committed to the city jail for disorderly conduct in the streets. I was put in there over night, and remained there until next morning. I had taken several drinks of whiskey that night, but was not drunk. 1 was reclining on a bench ; Caesar Hunter came to the door; I rose up; he asked me if I lived in LaVilla. The next morning some one pushed the defendant, Caesar Hunter, in my cell, and he asked me to give him some, and at the same time ran his hand under my clothes, took hold of my shoulder, and tried to push me over, when I screamed, and he ran out from the cell. I had never seen him before that morning, but I identified him as being the man. This happened in the county of Duval, and State of Florida. My occu
Bartola Canova for the State testified : ‘My name is Bartola Canova; I am the keeper of the city jail of the city of Jacksonville, Florida. I know Lucy Biggs, the prosecuting witness in this cause. I also know Caesar Hunter, the defendant. Some time in June last, Lucy Biggs, Caesar Hunter and some other prisoners were in the city jail for violating some of the city ordinances. Lucy Biggs was in the women’s cell ; she was put in there over night. Next morning the men prisoners were turned out in the corridor to go to work,
William C. West for the State testified : “I am city recorder of Jacksonville, Florida. I was in the room wfith Bartola Canova the morning the alleged crime was committed, and heard the screams of some one who seemed to be in one of the cells. I do not know whether the screams I heard were in Lucy Biggs’ cell or not. It was in that direction. Canova and myself wmnt in the passage together, and when we got in sight, I saw Cmsar Hunter about fourteen steps from the door of Lucy Biggs’ cell sweeping the floor, as though he was very much excited. There were several other prisoners not a great distance from him. Hunter was not running, but was sweeping the floor.”
This comprises the entire evidence for the State.
The defendant introduced as a witness one Captain Dennis, alias Dennis Jenkins, stated in the record to
Paul G. Phillips, chief of police of Jacksonville,. Testified .for the defendant that Lucy Biggs’ general character for chastity and morality in the neighborhood in which she lived was very bad.
N. B. Broward, sheriff of Duval county, also for the defendant, testified to the bad character of Lucy Biggs for chastity and morality; and testified further that she did not go to his house the night she was arrested for larceny.
This constituted the entire evidence for the State and for the defense. At the trial the defendant’s counsel requested the court to give to the jury the following instructions :
“2d.- The essential elements of force in an assault with intent to rape, are threats or fraud ; and, unless one of these is proved, the defendant should be acquitted.
“ 8d. The request of the defendant to the prosecutrix to consent to an improper intercourse may be taken in consideration by the jury to disprove the fact that the defendant intended to commit rape.
“4th. You have the right to disbelieve the evidence of any interested witness, upon no other ground than the fact of interest. You have the right to disbelieve the evidence of any non-interested witness if his evidence appears impossible or improbable.”
All four of which charges the court refused to give, and to each of which refusals the defendant by his counsel excepted, and their refusal is assigned as error here.
The first of these refused instructions should have been given. The gravamen of the charge contained in this information consisted in the intent with which the alleged acts of the defendant were committed. The intent of the prisoner should, throughout the instructions of the court, have been kept prominently before
The second refused instruction above states the rule of law that seems to have been established in the State of Texas by special statutory enactment (Thompson vs. State, 43 Texas, 583), but we can not say that the rule announced in the charge is applicable generally, in the absence of such statutory enactment, and, therefore, see no error in its refusal.
The third refused instruction above bears also materially upon the main question in issue — the intent of the defendant; it states the law correctly, and for the reasons stated above, should have been given ; and its refusal was error.
The fourth refused instruction above states the law correctly, and under the proof in this case, should have been given. The jury, under our system of laws, being the sole and exclusive judges of the weight and credibility to be given to any and all evidence, have the right, as is announced in this refused instruction, to disbelieve the -evidence of an interested witness solely upon the ground of interest. The refusal to give this fourth instruction was error.
The judgment and sentence of the court below is reversed.