Hollis v. State

• Decision Date: 14 March 1891
• Citation: 27 Fla. 387,9 So. 67
• Parties: HOLLIS v. STATE.
• Court: Florida Supreme Court

9 So. 67

27 Fla. 387

HOLLIS v. STATE.

Florida Supreme Court

March 14, 1891

Error to circuit court, Clay county; W. B. YOUNG, Judge.

The plaintiff in error was indicted at the last fall term of Clay county circuit court for having committed a rape upon Luvinia Turnage, on the 9th day of the previous April, and, having been found guilty by the jury, was sentenced by the court to be hung.

(Shllabus by the Court.)

COUNSEL

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

The testimony shown by the bill of exceptions is as follows: Luvinia Turnage testified: 'My name is Luvinia Turnage. I am fourteen years of age, and live at Green Cove Springs, Clay county, Fla. I live with my father and mother. Our house is in an orange grove. The trees are pretty thick, and grow all around the house. I know the defendant at the bar. He came to our house one day last April, and asked me for a cool drink of water. I showed him the well, and told him to get it. Then he asked me if he could go through our house to Sallie Hooper's. He came in the house and caught me, and

put one arm around my waist, and one hand over my mouth, and threw me down. He then slipped his hand down so that his arm would press on my throat, and told me if I hallooed he would kill me. Then he pulled up my dress, and put his thing in me and penetrated me. When he got up he said: 'There, now, I have broken the law.' Then he went off. My mother was cooking for Mrs. Moore, and my father was working at the wharf. I went to Mrs. Moore's, and told my mother what had happened. There was a little blood on my under-clothing in front, and I was sore for several days afterwards.' Cross-examination: 'There are several families living near our house, just across the street. I can see these houses from my house, and can see the reople passing about their places. I had never had my sickness when the defendant assaulted me, but had the whites.' Witness said she did not know what 'penetration' meant.

Mrs Turnage testified that she was the mother of Luvinia, and was not at home when defendant assaulted her daughter; was cooking for Mrs. Moore; that about 2 or 3 o'clock in the afternoon Luvinia went and told her 'what had happened;' that witness did not have any doctor to examine her daughter; saw a little blood on her under-clothing. Cross-examination: Her daughter had never had her sickness at the time she was assaulted. She had whites and had her sickness three or four weeks afterwards. Since she was assaulted, witness has frequently seen her under-clothing mattered up.

Mr. Turnage testified that he was the father of Luvinia, and that as he came from work he passed Mrs. Moore's, and his wife told him 'what had happened;' and that Luvinia afterwards told him 'about it.'

Andrew Fells, a witness for defendant, testified that he is a policeman of Green Cove Springs; knows the reputation of Luvinia Turnage in the community where she resides for truth and veracity; and that her reputation is bad, and witness would not believe her under oath.

Sallie Hooper testified for defendant as follows: 'I live just across the street from Luvinia Turnage. There are some orange trees around her house, but I can see plainly all about her house. I saw the defendant there the day she says he assaulted her; saw him at the well; and saw Luvinia standing on the front porch of her house. When he got the water he came over to my house. I did not hear Luvinia make any outcry, and did not hear a disturbance of any kind at her house. I know the reputation of Luvinia in the community where she lives for truth and veracity. Her reputation is bad. I would not believe her under oath.'

J. A. Peeler, in rebuttal, testified that he knew the reputation of Sallie Hooper in the community where she lives, and that her reputation was bad.

George N. Barton testified, in behalf of the state, that he was familiar with the place and surroundings where Luvinia Turnage resides. She lives in an orange grove. The trees are pretty thick. The house sits back some distance from the street. Several families live in the immediate vicinity where Luvinia lives. That by stooping down, and looking under the tops of the trees, he could see all about the place.

J. S. Barrs testified for the state that he arrested the defendant, who, when arrested, said he 'had been to Luvinia's house to get some water, but did not assault her.'

OPINION

RANEY, C.J., (after stating the facts as above.)

This case, one of rape, comes before us on a motion for a new trial, the grounds of which, insisted upon here, are that the verdict was contrary to law and contrary to the evidence. The instructions given by the judge to the jury were not excepted to.

It is contended on behalf of plaintiff in error that the testimony does not show that the connection was consummated by force, and against the will of the prosecutrix. The statute contemplates that the offense shall be 'by force, and against her will.' Section 36, p. 355, McClel. Dig.; 2 Bish. Crim. Law, § 1113; Charles v. State, 11 Ark. 389; State v. Murphy, 6 Ala. 765. There must be a concurrence of these two ingredients. Cato v. State, 9 Fla. 163, 184. If force was used, and yet the carnal knowledge was not against the will of the female, the crime of rape has not been committed. In some states it has been held that there must be resistance to the extent of the woman's ability. Thus, in New York, in People v. Dohring, 59 N.Y. 374, where the female was but 14 years old, the decision is that to constitute the crime of rape of a female over 10 years of age, when it appears that at the time of the alleged offense she was conscious, had the possession of her natural mental and physical powers, was not overcome by numbers, or terrified by threats, or in such place and position that resistance would have been useless, it must also be made to appear that she did resist to the extent of her ability at the time and under the circumstances. See, also, People v. Morrison, 1 Park. Crim. R. 625; People v. Quin, 50 Barb. 128. In other states it is said there must be the utmost reluctance and the utmost resistance upon the part of the female, or her will must be overcome by fear of the defendant, (Strang v. People, 24 Mich. 1; Don Moran v. People, 25 Mich. 356;) and that 'the passive policy,' or a half-way case, will not do, or resistance of such an equivocal character as to suggest actual consent, or not a very decided opposition, (State v. Burgdorf, 53 Mo. 65; People v. Brown, 47 Cal. 447; People v. Hulse, 3 Hill, 309, 315-317.) If the jury entertain a reasonable doubt of such reluctance and resistance, they should acquit, (Strang v. People, supra;) and where upon a trial the vital issue was whether the act was committed by force, and against the will of the prosecutrix, the jury must be satisfied, beyond a reasonable doubt, that she did not yield her consent during any part of the act, (Brown v. People, 36 Mich. 203.)

In Commonwealth v. McDonald, 110 Mass. 405, the trial judge charged that the act of the defendant must have been without the woman's consent, and there must have been sufficient force used to accomplish his purpose; that the jury must be satisfied that there was no consent during any part of the act; and that the degree of resistance was frequently an essential matter for them to consider in determining whether the alleged want of consent was honest and real, but that there was no rule of law requiring a jury to be satisfied that the woman, according to their measure of her strength, used all the physical force in opposition of which she was capable; and this charge was held by the supreme court to be appropriate and correct. Likewise, in State v. Shields, 45 Conn. 256, the supreme court of Connecticut approved a charge that there was no rule of law that there could be no rape unless the woman manifested the utmost reluctance and made the utmost resistance, but that the jury must be satisfied there was no consent during any part of the act, and that the degree of resistance was an essential matter for them to consider in determining whether there was an honest and real want of consent. In this case it is said in the opinion: 'The importance of resistance is simply to show two elements in the crime,--carnal knowledge by force by one of the parties, and non-consent thereto by the other. These are essential elements, and the jury must be fully satisfied of their existence in every case by the resistance of the complainant if she had the use of her faculties and physical powers at the time, and was not prevented by terror or the exhibition of brutal force. So far resistance by the complainant is important and necessary, but to make the crime hinge on the uttermost exertion the woman was physically capable of making would be a reproach to the law, as well as to common sense.'

Mr Bishop, in his work on Criminal Law, (volume 2, § 1122,) says it is plain that in the ordinary case where the woman is awake, of mature years, of sound mind, and not in fear, a failure to oppose the carnal act is consent, and though she objects verbally, if she makes no outcry and no resistance, she by her conduct consents, and the carnal act is not rape in the man; that the will of the woman must oppose the act; and that any intimation favoring it is fatal to the prosecution. He, however, disapproves the doctrine as to resistance affirmed in People v. Dohring, supra, and says that the text of the law, and the better judicial doctrine, require only that the case shall be one in which the woman did not consent. Her resistance however, must not be a mere pretense, but in good faith. The text of the law referred to by him is the statute of Westm. II. (13th Edw. 1,) c. 34, A. D. 1285, which he gives (section 1111, Id.)...