DeLaine v. State

• Decision Date: 03 May 1972
• Docket Number: No. 39464,39464
• Parties: William E. DeLAINE et al., Petitioners, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 655

262 So.2d 655

William E. DeLAINE et al., Petitioners, v. STATE of Florida, Respondent.

No. 39464.

Supreme Court of Florida.

May 3, 1972.

Robert E. Jagger, Public Defender, Carleton L. Weidemeyer, Sp. Asst. Public Defender, and Frank H. White, Asst. Public Defender, for William E. DeLaine, Joseph I. Graier, James C. Hillary, Irving Knight and Charlie Waters.

Fred G. Minnis of Minnis & Williams, St. Petersburg, for Wilbur L. Hunter.

Robert L. Shevin, Atty. Gen., and Michael N. Kavouklis, Asst. Atty. Gen., for respondent.

ON REHEARING GRANTED AND ORIGINAL OPINION WITHDRAWN

CHRISTIE, FRANCIS J., Circuit Judge:

This Court granted a petition for certiorari in the above-styled case on the basis of apparent conflict in the case at Bar with other decisions of this Court or other appellate courts of this State. The petition is presented pursuant to Fla.Const., art. V, § 4, F.S.A., and Rule 4.5, subd. c of the Florida Appellate Rules, 32 F.S.A.

The petitioners were indicted by the Grand Jury of Pinellas County for the crime of rape.

The petitioners were tried together for said crime and were each convicted of said charge with a recommendation of mercy. Thereafter they were sentenced to imprisonment.

After their convictions and sentencing, petitioners appealed to the District Court of Appeal, Second District, assigning as error eight points for consideration. The District Court of Appeal, Second District, affirmed their conviction. DeLaine v. State, 230 So.2d 168 (Fla.1970).

Thereafter this Court granted certiorari to the District Court of Appeal, Second District, for the above-stated reason of conflict, if any, with other reported cases of this State.

One of the eight points assigned as error by petitioners in their appeal to the District Court of Appeal, Second District, was based upon the refusal of the trial court to give their requested instructions as to lesser included offenses to the crime of rape, namely, assault and battery, and fornication.

This opinion is directed solely to the above assigned point, as it is obvious that this was the pivotal or only point which caused this court to issue the writ of certiorari.

For purposes of clarity, the assigned point is treated in two phases or in two categories; first the crime of fornication and, lastly, the crime of assault and battery.

With this in view, it becomes necessary to recite the facts that occurred in the case now under consideration.

The prosecutrix, a high school student, during lunch hour at school, entered an automobile that was parked adjacent to the school. A fellow student (one of the petitioners before the Court) was the only other occupant of the car. He started the vehicle and took the prosecutrix for a ride. Nothing of any consequence occurred during the ride, but upon arriving at a house in a residential section of the city, the driver stopped the automobile and by the use of some degree of force was able to get the prosecutrix into the house. Thereafter what occurred can be best described as an attack with such force and brutality that she was thrown upon the bed by the petitioners, who had secreted themselves in the house. Her undergarments were ripped from her body, her eye, her breast, her arm and her leg were contused. She was raped by petitioners, one after the other, with the exception of one, Irving Knight, who stated that he would wait 'til last. Throughout this sordid ordeal, those of the petitioners that were not having carnal knowledge of the prosecutrix were either holding her or aiding and abetting the others and awaiting their turn.

The testimony before the trial court and the jury that consumed 14 days showed, inter alia, that the prosecutrix fought gallantly and resisted her attackers to the fullest extent. She lost her fight to the horde that perpetrated upon her a brutal and ferocious attack that did not end until the arrival of the police.

Petitioners contend that the trial court erred in failing to give an instruction of the lesser included offense of fornication.

At common law, the term 'fornication' was used to describe illicit sexual intercourse between either a married or an unmarried man and an unmarried woman, and was not punishable unless committed under such circumstances as to amount to a nuisance. 1 F.L.P., Adultery, Fornication and Lewdness, § 11; 1 Fla.Jur., Adultery and Fornication, § 12. Fla.Stat. § 798.03, F.S.A., penalizes the commission of fornication but does not define the crime. The statute provides that both parties are equally guilty. The common law definition of a crime is accepted when a statute does not define the forbidden conduct. Carnley v. State, 88 Fla. 281, 102 So. 333 (1924). These principles must be considered in determining whether or not fornication is a lesser included offense where petitioners are charged with rape.

In Pratt v. State, 84 Fla. 685, 95 So. 232 (1923), the defendant was convicted for having carnal intercourse with an unmarried female of previous chaste character under the age of eighteen years. This offense is generally referred to as 'statutory rape.' The following appers in the opinion affirming the conviction:

'The fourth requested instruction was:

"The court charges you that, under the evidence submitted to you, you cannot convict the defendant of any greater crime than fornication.'

'This charge was correctly refused, because the offense named in that instruction is a separate and distinct offense, and not one of a lesser degree than that with which the defendant is charged, And is not included in it.' (Emphasis supplied) (p. 223).

We hold that fornication is an offense separate and distinct from rape, and is not a necessary included offense. See Holland v. State, 161 Ga. 492, 131 S.E. 503; 37 C.J.S. Fornication § 1, p....