Askew v. State

• Decision Date: 17 February 1960
• Citation: 118 So.2d 219
• Parties: Donald Ray ASKEW, Appellant, v. STATE of Florida, Appellee.
• Court: Florida Supreme Court

Page 219

118 So.2d 219

Donald Ray ASKEW, Appellant, v. STATE of Florida, Appellee.

Supreme Court of Florida.

Feb. 17, 1960.

Rehearing Denied March 16, 1960.

Scruggs, Carmichael & Avera, Gainesville, for appellant.

Richard W. Ervin, Atty. Gen., and B. Clarke Nichols, Asst. Atty. Gen., for appellee.

HOBSON, Justice.

This is an appeal by Donald Ray Askew from a judgment imposing the death sentence pursuant to a jury verdict finding the appellant guilty of rape without a recommendation of mercy.

The appellant was indicted for the rape of a female age ten and one-half. The record discloses that on the night of the alleged crime the appellant, together with several other adults, were social guests of the victim's mother at her home. After a 'round of drinks,' the group broke up. All the adults, including the appellant and the victim's are (1) penetration of female private parts according to the testimony of the victim and her two brothers, the appellant returned to the house alone.

With but slight variation, the victim and her brothers (ages 13 and 15 years) testified that the appellant by threats of bodily harm, forced the boys to lie on a bedroom floor while he carnally attacked the victim. The victim testified the appellant forcibly attacked her even though she attempted to kick him and otherwise resist. Her testimony was supported by that of her brothers. The physician who interviewed the victim, within a few house after the attack, testified that his examination revealed that the victim's private parts had been violently penetrated.

To the indictment, the appellant entered a plea of 'not guilty by reason of temporary insanity and that the type of temporary insanity relied upon is loss of memory during the time the act charged took place, brought on by extreme use of alcohol.' In his own defense the appellant testified that during the afternoon and evening of the day in question he had consumed large quantities of beer and whiskey. It was his testimony that he became so intoxicated that he blacked out prior to going to the victim's house the first time and that he has no recollection of subsequent events that may have transpired.

The court-appointed psychiatrist testified that, based upon the appellant's history, the neurological, psychiatric and psychological examinations (which included an electro-encephalographic study) it was his opinion that the appellant was neither medically psychotic nor legally insane. He did testify that the examinations disclosed some evidence of emotional instability and alcoholism.

Appellant presents a number of questions for our consideration.

It is contended on this appeal that the trial court erred by sustaining the State's objection to three questions propounded by the defense consel in his cross examination of the court-appointed psychiatrist. We have carefully examined these questions and are of the opinion that, when they are viewed in light of the particular facts of this case, the trial court was justified in sustaining the State's objection to the same.

The appellant further contends that the trial court erred by failing to give two of his requested charges to the jury. The contention is based upon the appellant's theory that the appellant was so intoxicated that he could not form the intent necessary to commit the crime of rape and that such a specific intent is an essential element of this crime.

It is here relevant to reiterate that when an appellate court passes upon the propriety of the trial court's refusal to give requested charges, it is duty bound to consider the items refused in connection with all other charges bearing on the same subject. If when thus considered the law appears to have been fairly presented to the jury, assignments of error predicated upon the giving or refusing to give such charges must fail. ¹

The common law crime of rape is composed of three essential elements: carnal knowledge, force, and the commission of the act without the consent or against the will of the female victim. ²

In the past, the type of rape we are here concerned with has been defined in Florida as the ravishment and carnal knowledge of a female of the age of ten years or more by force and against her will. ³

'The elements of the crime are (1) penetration of the female private parts by the private male organ, and (2) force of such a nature as to put the victim in such fear that she is thereby compelled to submit to the act. Barker v. State, 40 Fla. 178, 24 So. 69; Russell v. State, 71 Fla. 236, 71 So. 27.' ⁴

With reference to the alleged failure of the court to charge on the subject of intent, counsel for appellant makes a novel and unique two-pronged argument. He, after citing authority for the proposition that rape was a crime malum in se at common law points out that this court held in Talley v. State ⁵ that:

'In many criminal offenses, intent is the essence of the crime, and where not established, the prosecution fails. In crimes malum in se, intent is presumed, but where it is not a matter of presumption, it must be proven as any other fact.' (Emphasis supplied.)

From this the petitioner illogically reasons that the State must show the appellant was capable of manifesting necessary criminal intent.

In support of his assertion that a specific intent must be proven by the prosecution in a rape case, the appellant has cited respectable authority to the effect that the gravamen of the offense of assault with intent to rape is intent to have unlawful intercourse with the intended victim with or without her consent. ⁶ The appellant argues that, since assault with intent to commit rape is a lesser included offense in the higher crime of rape, ⁷ a conviction of the crime of rape requires proof of a specific intent. While we agree with appellant's statement that intent to accomplish the carnal act is the gravamen of the assault with intent to rape, we do not agree that such a specific intent is the essence of the crime of rape.

Although very little has been written in this state on the subject of intent in rape prosecutions, it is clear that while a general intent is involved in the crime, no specific intent is requisite other than that evidenced by the doing of the acts constituting the offense. ⁸

The law makes the act of rape the crime and infers a criminal intent from the act itself. ⁹

Since the requisite intent is presumed or inferred from the act itself, voluntary intoxication is only a defense to the crim of rape when its use produces a mental condition of insanity. As this court indicated in Cochran v. State: ¹⁰

'The mental effects of a mere voluntary tary intoxication may not excuse the commission of an unlawful act or relieve its comsequences; but if excessive and long-continued use of intoxicants produces a mental condition of...