Barker v. State

• Citation: 24 So. 69,40 Fla. 178
• Parties: BARKER v. STATE
• Decision Date: 13 April 1898
• Court: United States State Supreme Court of Florida

24 So. 69

40 Fla. 178

BARKER v. STATE

Florida Supreme Court

April 13, 1898

Error to circuit court, Duval county; Rhydon M. Call, Judge.

George Barker was convicted of rape, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. On an indictment for rape it is not necessary for the state to prove emission in order to sustain the charge; proof of penetration alone is sufficient.

2. The court refused to instruct the jury at the request of defendant as follows: 'If, after a comparison and consideration of all the testimony in the case, there remains upon the mind of any one of your number a reasonable doubt as to the truth of the charge as laid in the indictment, then under your oaths as jurors, you cannot convict the defendant.' Held, the refusal was not error, in view of other charges given on the subject.

3. It is not error to refuse an additional charge when the court has already fully and sufficiently charged on the point covered by the additional request.

4. The court commits no error in refusing an instruction which implies, and is calculated to impress the jury with the view that there is no testimony as to a certain phase of the case when the record shows that, in point of fact, there was such testimony.

5. An indictment for rape sufficiently alleges the offense to have been committed on a female when the name of the person alleged to have been ravished is that of a female, and the pronoun 'her' is employed in further identification though there be no direct allegation in terms that the person was a female.

6. The circuit court of this state, having jurisdiction of the capital offense of rape, has the power, under the constitution and laws of this state, to impose the penalty for an assault with intent to commit rape when the jury acquits of the higher, but returns a verdict of guilty of the lesser, offense.

7. The evidence in this case held sufficient to sustain a verdict of guilty of assault with intent to commit rape.

COUNSEL

Clark & Gibbons, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

MABRY J.

Plaintiff in error was indicted in the circuit court for Duval county for the crime of rape, and upon trial was convicted of an assault with intent to commit rape. The sentence imposed by the circuit judge was 20 years in the penitentiary. The charging part of the indictment is 'that one George Barker, late of the county of Duval and state of Florida, on the 17th day of January, in the year of our Lord one thousand eight hundred and ninety-seven, in the county and state aforesaid, with force and arms in and upon one Mabel Bettelini did make an assault, and her, the said Mabel Bettelini, then and there feloniously did ravish and carnally know, forcibly and against the will of her, the said Mabel Bettelini, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.'

The first error assigned here on the record brought up by writ of error is that the court erred in refusing to give to the jury the seventh instruction requested by the defendant, as follows, viz.: 'You are instructed that while, under our law, it is not necessary, upon a trial for rape, to specifically prove emission, yet the circumstances must be such as infer that emission did take place.' The statute provides that whoever ravishes and carnally knows a female of the age of 10 years or more, by force and against her will, or unlawfully or carnally knows and abuses a female child under the age of 10 years, shall be punished by death or by imprisonment in the state prison for life. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only. It is not now necessary for the state to prove emission in order to sustain a charge of rape; penetration alone is sufficient. Reg. v. Allen, 9 Car. & P. 31; Ellis v. State, 25 Fla. 702, 6 So. 768; Brauer v. State, 25 Wis. 413; Pennsylvania v. Sullivan, Add. 142; State v. Hargrave, 65 N.C. 466.

Another assignment of error is the refusal of the court to give the jury the following instruction, requested by the defendant viz.: 'If, after a comparison and consideration of all the testimony in the case, there remains upon the mind of any one of your number a reasonable doubt as to the truth of the charge as laid in the indictment, then, under your oaths as jurors, you cannot convict the defendant.' In the general charge the court instructed the jury that 'the accused is always presumed to be innocent of the offense charged until he is proved guilty, and, to overcome this presumption and establish his guilt, it is not sufficient to furnish a mere preponderance of evidence tending to prove his guilt, nor to prove a mere probability of his guilt, but proof of his guilt to the exclusion of or beyond a reasonable doubt is indispensable. The burden of such proof is upon the state, and it is to the evidence introduced upon the trial, and to it alone, that you are to look for such proof. Keeping this in mind, as jurors charged with the solemn duty in hand, you must carefully, impartially, and conscientiously consider, compare, and weigh all the testimony; and if, after doing this, you find that your understanding, judgment, and reason are satisfied and convinced by it to the extent of having a full, firm, and abiding conviction to a moral certainty that the charge is true, then the charge has been proved to the exclusion of any reasonable doubt, and it is your duty to convict.' And for the defendant the court charged the jury that 'in this trial the defendant, George Barker, is entitled to the benefit of every reasonable doubt that may be resting upon your minds as to the truth of the charge as laid in the indictment upon which he is being tried. It is the duty of the state, before a conviction can be asked at your hands, to prove to your satisfaction, and beyond all reasonable doubt, every material allegation contained in the indictment. If, after a comparison and consideration of all the testimony, there remains upon your minds a reasonable doubt as to the truth of the charge, you are bound under your oaths to give the defendant the benefit of such doubt and acquit him.' In other portions of the charges given, both for the state and defendant, the jury were told that if they had any reasonable doubt, upon considering the evidence, of the guilt of the accused, they should acquit him. In the case of Boyd v. State, 33 Fla. 316, 14 So. 836, the refusal of the trial court to charge, in effect, that, if any one of the jury entertained a reasonable doubt of the guilt of the accused, it would be the duty of the jury to acquit, was approved. The meaning of the charge was that, if any one juror had a reasonable doubt, the others, though satisfied beyond such doubt of the guilt of the accused, should surrender their judgment to the doubt of the one, and concur in a verdict of acquittal. Such a charge was clearly erroneous. It is said in the Boyd Case that the judge was right in refusing to give the instruction, and had already charged in the language which is ordinarily used, and which secures to each juror the exercise of his individual judgment. A request to instruct the jury, in substance, that, if any juror entertained a reasonable doubt of defendant's guilt, he was not required to surrender his conviction because other jurors entertained no such doubts, was refused, and the refusal sustained, in the case of State v. Hamilton, 57 Iowa, 596, 11 N.W. 5. It is said in the opinion that, 'of course, each juror is to act upon his own judgment. He is not required to surrender his convictions unless convinced. He may be aided by his fellow jurors in arriving at the truth, but he is not to find a verdict against his judgment merely because the others entertain views different from his own. But a jury need not be advised of so simple a proposition. The usual method of instructing upon the measure of proof required in criminal cases is sufficient.' In State v. Sloan, 55 Iowa, 217, 7 N.W. 516, and State v. Stewart, 52 Iowa, 284, 3 N.W. 99, instructions that a reasonable doubt was such as arose fairly and naturally in the minds of the whole jury, and such as was susceptible of being so construed as to require the jury to convict, unless each individual juror shared a reasonable doubt of the guilt of the accused, were pronounced erroneous. Decisions in the state of Washington sustain the rejection of such a charge as was refused in the case before us. State v. Robinson, 12 Wash. 491, 41 P. 884; State v. Williams, 13 Wash. 335, 43 P. 15. In Kansas and Indiana it was held reversible error to refuse a charge to the effect that if any one of the jury, after having considered all the evidence in the case, and after consultation with his fellow jurymen, should entertain a reasonable doubt of defendant's guilt, the jury could not find the defendant guilty. State v. Witt, 34 Kan. 488, 8 P. 769; Castle v. State, 75 Ind. 146; Stitz v. State, 104 Ind. 359, 4 N.E. 145; Clem v. State, 42 Ind. 420; Fassinow v. State, 89 Ind. 235; Aszman v. State, 123 Ind. 347, 24 N.E. 123. In Alabama it is pronounced error to refuse a charge in a criminal case that each juror must be satisfied beyond a reasonable doubt that the accused is guilty before a conviction can be had. Carter v. State, 103 Ala. 93, 15 So. 893; Grimes v. State, 105 Ala. 86, 17 So. 184. In the charges considered in the Kansas and Indiana cases referred to, the view of conference or consultation with fellow jurors was embraced, which is absent from the charge refused in the case before us. It is the duty of jurors in arriving at a verdict to consult with each other, and reconcile any differences...