35 Fla. 236 | Fla. | 1895
The plaintiff in error was convicted of the crime of rape upon one Helen Smith, his step-daughter. At the trial the defendant’s counsel propounded the following question in cross-examination of the prosecutrix, to-wit: ‘‘Did you ever have intercourse with this, defendant or any other man previous to last Monday morning?” The time inquired about was that at which the offense was committed, as shown by her examination in chief. The ruling of the court sustaining an objection to this question is assigned as error. The assignment is not well taken. The avowed object of the question was to impeach the chastity of the prosecutrix, and to show a probability of_her consent to carnal intercourse -with the defendant. If the question had been confined to the matter of acts of intercourse between the prosecutrix and the defendant, it would have been admissible, but she could not be interrogated as to such acts with other persons than the defendant. On a trial for rape the character of the prosecutrix for chastity,
In the further progress of the case, the specific question was asked the prosecutrix as to whether she had ever before the time inquired about had sexual connection with the defendant, and she emphatically denied such connection. She was also asked, without objection (and, we might add, properly asked), whether she had not had sexual intercourse with some other man on the Saturday afternoon preceding the said Monday morning, and denied that she had_any such connection. The apparent object of this question was to show that the bloody stains upon the clothing of the prosecutrix were caused by some other person than the defendant, and was relative and an important matter of evidence. Considering the line of defense adopted by the defend
The next assignment of error argued is based upon the following instruction given by the court to the jury: “If, at the time the man had carnal knowledge of the female, her mind was overpowered by fear induced by the man, and therefore she made no resistance, it is rape.” We do not think this instruction was erroneous. In 2 Bishop’s Criminal Law (8th ed.), § 1125, it is said: “Though a man lays no hands on a woman, yet if by an array of physical force he so overpowers her that she dares not resist, his carnal intercourse with her is rape.” A note to the text cites numerous authorities sustaining the proposition. The same doctrine has been indirectly approved in this State in the case of Hollis vs. State, 27 Fla. 387, 9 South. Rep. 67. The gist of the offense is forcible carnal knowledge against the will of the woman.
The last assignment of error that is argued is the refusal of the court below to grant a new trial. Upon this assignment it is contended that the verdict of the jury is not supported by the evidence. Upon this point the court is divided. One member thinks that while the evidence was highly improbable, yet it having been submitted to the jury, and approved by the judge who presided at the trial, who had better opportunities to judge of the truthfulness of the statements than we have, that the verdict ought not to be disturbed. The majority of the court are of the opinion that the improbable nature of the evidence, taken with the fact of the contradiction of the prosecutrix, the inconistency of her statements to other witnesses, make the truth of the matter so doubtful that the verdict ought to be set aside, and there should be at least another trial of the case. This view is also influenced to a considerable extent by the fact that the trial was had within four days of the alleged perpetration of the offense charged, which is so likely to' arouse excitement indignation and prejudice against the accused. As the case is remanded, it is not proper to further comment upon the evidence.
The judgment of the Circuit Court is reversed and a new trial awarded.