Frenette v. State
| Decision Date | 01 April 1947 |
| Citation | 29 So.2d 869,158 Fla. 675 |
| Parties | FRENETTE v. STATE. |
| Court | Florida Supreme Court |
Rehearing Denied April 29, 1947.
Appeal from Circuit Court, Dade County; Ross Williams, Judge.
Cushman & Woodard, L. J. Cushman and John D. Marsh, all of Miami for appellant.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
Appellant, having been indicted and tried for the crime of rape, was convicted of assault with intent to commit rape.
The record is sufficient to establish that the appellant assaulted his intended victim with intent to have sexual intercourse with her; that she resisted his afforts and advances until he struck her a blow which knocked her unconscious; that when she regained consciousness he was kneeling over her and the crotch of her panties had been ripped or torn out.
The record discloses error that would have been reversible had the verdict been guilty of rape. This was evidence admitted concerning the technical analysis of a smear taken from the vagina of the alleged victim. The smear analyzed was not sufficiently identified for the report of the analysis to be admissible in evidence and neither was the purported report sufficiently identified to become admissible. This however, became an immaterial and harmless error because that evidence, had it been such as could have legally been admitted, only went to the matter of establishing penetration. The element of penetration was no longer a factor in the case when the jury by its verdict in effect acquitted appellant of rape by finding him guilty of assault with intent to commit rape and, therefore, the error became harmless because the verdict of the jury determined that there was not sufficient evidence to establish penetration. See Bowden v. State, 152 Fla. 715, 12 So.2d 887.
Appellant contends that the judgment should be reversed because of unfounded and prejudicial statements made by the state's attorney in his closing argument to the jury. The record does show that some improper argument was used by the state's attorney. A prosecuting attorney should always confine his argument to facts which are established by the record or which may be reasonably inferred from the facts established, and when he goes beyond that range he takes the chance that he may thereby cause the necessity of the reversal of a favorable judgment.
In this case however, the objectionable remarks and statements of ...
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Wingate v. State, 69--563
...which may intrude upon the most experienced prosecuting attorneys. Eg., Singer v. State, Fla.1959, 109 So.2d 7; Frenette v. State, 1947, 158 Fla. 675, 29 So.2d 869. We also feel compelled to recognize the increased degree of sophistication and intelligence which the modern jury possesses fo......
- Blanton v. State ex rel. McManus
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Smith v. State
...trial court, if any, could not be taken advantage of by the defendant who was convicted of the substantive offenses. In Frenette v. State, 158 Fla. 675, 29 So.2d 869, our Supreme Court 'The record discloses error that would have been reversible had the verdict been guilty of rape. This was ......
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Moe v. State, 83-2559
...Before SCHWARTZ, C.J., and BARKDULL and BASKIN, JJ. PER CURIAM. Affirmed. State v. Murray, 443 So.2d 955 (Fla.1984); Frenette v. State, 158 Fla. 675, 29 So.2d 869 (1947); Bonham v. State, 450 So.2d 269 (Fla. 3d DCA 1984); Stanley v. State, 357 So.2d 1031 (Fla.3d DCA 1978); White v. State, 3......