Bell v. State
| Decision Date | 14 March 1911 |
| Citation | 54 So. 799,61 Fla. 6 |
| Parties | BELL v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, St. Lucie County; Minor S. Jones, Judge.
Joseph H. Bell was convicted of assault with intent to rape, and he brings error. Reversed and remanded.
Syllabus by the Court
Motions to quash indictments and the ruling of the court thereon form part of the record proper in a cause, and have no place in the bill of exceptions, and, when evidenced to an appellate court only by a bill of exceptions, such court cannot consider assignments of error based upon the overruling of such motions.
The gravamen of the offense in an indictment charging an 'assault with intent to rape' is the intent with which the assault was made, and the intent in such cases must be shown by the state to have so possessed the accused that his determination was to consummate the rape, regardless of resistance and want of consent.
COUNSEL A. D. Penney, for plaintiff in error.
Park Trammell, Atty. Gen., for the State.
Joseph H. Bell was convicted in the circuit court for St. Lucie county of an assault with intent to rape and sentenced to five years in the state prison.
Eighteen errors are assigned, several of which are abandoned. We shall not undertake to discuss them in detail.
The first five are based upon the overruling of the motion to quash the indictment, but they are not properly before us for consideration, since such motion and the ruling of the court thereon do not appear in the record proper, but are found only in the bill of exceptions. Tipton v. State, 53 Fla. 69, 43 So. 684, wherein prior decisions will be found cited.
A motion for a new trial was made, which questioned the sufficiency of the evidence to support the verdict. The denial of this motion forms the basis of one of the assignments. A careful reading of all the testimony, which we shall not attempt to set out, or even to summarize, convinces us that the court erred in refusing to grant such motion.
We held in Hunter v. State, 29 Fla. 486, 10 So. 730, that 'the intent in such cases must be shown by the state to have so possessed the accused that his determination was to consummate the rape, regardless of resistance and want of consent.' Also see Clark v. State, 56 Fla. 46 47 So. 481, and Rushton v. State, 58 Fla. 94, 50 So 486. We think that the evidence fails to come up to this requirement. For this...
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Ward v. State
... ... evidenced to the appellate court by the record proper, and ... not by the bill of exceptions, and that, when this ... requirement is not observed, and the motion is not so ... evidenced, it will not be considered. Parramore v ... State, 81 Fla. 621, 88 So. 472; Bell v. State, ... 61 [83 Fla. 317] Fla. 6, 54 So. 799; Tipton v ... State, 53 Fla. 69, 43 So. 684; Johnson v ... State, 51 Fla. 44, 40 So. 678. This point, therefore, is ... not so presented that it may be considered ... By a ... motion in arrest of judgment, the ... [91 So. 191] ... ...
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...Am. Dec. 336; Barr v. People, 113 Ill. 471; Stevens v. People, 158 Ill. 111, 41 N.E. 856; Austin v. State (Miss.), 48 So. 817; Bell v. State, 61 Fla. 6, 54 So. 799; Dina v. State, 46 Tex. Cr. 402, 78 S.W. Anderson v. State, 77 Ark. 37, 90 S.W. 846; Stoker v. State, 93 Tex. Cr. 24, 245 S.W. ......
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Parramore v. State
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...See Raines v. State, 42 Fla. 141, 28 So. 57; Olds v. State, 44 Fla. 452, 33 So. 296; Johnson v. State, 51 Fla. 44, 40 So. 678; Bell v. State, 61 Fla. 6, 54 So. 799; Watkins State, 69 Fla. 355, 68 So. 176; Ward v. State, 83 Fla. 311, 91 So. 189. The sufficiency of the indictment therefore, a......