Jackson v. State

• Decision Date: 27 August 1958
• Docket Number: No. 381,381
• Citation: 107 So.2d 247
• Parties: Earl Jake JACKSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 247

107 So.2d 247

Earl Jake JACKSON, Appellant, v. STATE of Florida, Appellee.

No. 381.

District Court of Appeal of Florida, Second District.

Aug. 27, 1958.

Rehearing Denied Oct. 21, 1958.

Rosenhouse & Rosenhouse, Carr & O'Quin, Miami, for appellant.

Richard W. Ervin, Atty. Gen., and Irving B. Levenson, Asst. Atty. Gen., for appellee.

ALLEN, Acting Chief Judge.

Earl Jake Jackson was found guilty of rape and recommended to mercy. Motion for new trial was denied and on May 20, 1957, he was adjudged guilty and sentenced to life imprisonment, from which judgment and sentence this appeal was taken.

The appellant is 28 years of age and the prosecutrix is 67 years of age. The two were acquainted with each other, having met in a bar in Lake Worth several weeks previous to the offense. At about 7:00 P. M. on the night of the alleged rape, appellant entered the Silver Dollar Bar to cash a check. The prosecutrix and the appellant had drinks at the bar and left together in defendant's truck. Beginning with the reason for leaving the bar together, the testimony of defendant and prosecutrix is completely conflicting as is usual in a case of this sort. However, such conflicts are left for discussion under the first question raised by this appeal.

After leaving the bar in defendant's truck, defendant and prosecutrix turned off the paved street onto a sandy road. It was on this road that the alleged crime took place. Prosecutrix then walked back to the paved road and obtained a ride to a telephone. She called the police and reported that she had been raped. The officers arrested defendant as he was driving his truck along the sand road toward the paved road.

The appellee, in its brief, states three points as follows:

'Point I.-Whether or not the evidence is sufficient to sustain the jury's verdict of guilty and the trial court's judgment of conviction for the crime of rape in regard to the element of the prosecutrix's resistance and lack of consent?'

'Point II.-Whether or not an appellant in a criminal case can attack the court's refusal to charge the jury in reference to a particular request when the appellant fails to present an objection in the trial court prior to the jury's retiring to consider its verdict and where such objection is raised for the first time in a motion for a new trial?'

'Point III.-Whether or not an abuse of judicial discretion occurred in violation of Florida Statutes, Chapter 919.05 (F.S.A), when the trial court declined the jury's request to hear 'some testimony again' after it had retired to consider its verdict?'

As a subsidiary to Point II, the Court states the following question:

(II.a) Whether, under the facts in this case, it was reversible error for the court to refuse to give the following charge:

'Gentlemen of the Jury, I charge you 'That some of the evidence produced by the State has been that kind of evidence known as circumstantial evidence. Circumstantial evidence should be received and acted upon with caution, and before you are warranted in convicting the defendant, Earl Jake Jackson, upon circumstantial evidence, there should be such a well connected and unbroken chain of circumstances as to exclude all other reasonable hypotheses but guilt. 'Hypothesis' means supposition or theory. The circumstances must not only be consistent with guilt, but they must be inconsistent with innocence. In other words, the circumstances must point directly to the guilt of the defendant; and if they point just as reasonably to the innocence of the defendant, you must acquit the defendant.''

We shall discuss Point I, supra, first. Chapter 794.01, Florida Statutes, F.S.A., defines rape as follows:

'Whoever ravishes and carnally knows a female of the age of ten years or more, by force and against her will * * *. It shall not be necessary to prove the actual emission of seed, but the crime shall be deemed complete upon proof of penetration only.'

Thus it shall be seen that the elements of the crime are, first, carnal knowledge and, second, that the act was perpetrated against the will of the victim.

The carnal act must be committed against the resistance of a woman. The facts in practically every case cited are different, and the cases are not consistent about the manner or degree of resistance that is necessary. The importance of resistance is to establish the lack of consent on the part of the prosecutrix. Resistance is a relative term and must be considered in accordance with the special circumstances surrounding each and every case.

In Green v. State, 1938, 135 Fla. 17, 184 So. 504, 505, the Florida Supreme Court affirmed the conviction of the appellant of rape. In its opinion, the Court quoted from Baldwin's Century Edition of Bouvier's Law Dictionary as follows:

'The knowledge of the woman's person must be forcibly and against her will; and if her consent has not been voluntarily and freely given (when she has the power to consent), the offense will be complete, nor will any subsequent acquiescence on her part do away the guilt of the ravisher. A consent obtained from a woman by actual violence, by duress or threats or murder, or by the administration of stupefying drugs, is not such a consent as will shield the offender or turn his crime into adultery or fornication;'

The Court further said in its opinion:

'In Doyle v. State, 39 Fla. 155, 22 So. 272, 63 Am.St.Rep. 159, this Court defined rape as follows:

"Consent of the woman from fear of personal violence is void, and, though a man lays no hands on a woman, yet if, by array of physical force, he so overpowers her that she dares not resist, his carnal intercourse with her is rape."

In 44 Am.Jur., Rape, § 7, page 906, the following appears:

'Resistance is necessarily relative. It is accordingly not necessarily illogical for courts to apply the requirement of most vigorous resistance to common cases, and to modify it in varying degrees and peculiar circumstances, and to refuse to apply it to exceptional cases. In all cases, the circumstances and conditions surrounding the parties to the transaction are to be considered in determining whether adequate resistance was offered by the female. It is proper to consider the age and strength of the woman, and her nemtal condition as bearing upon the question whether the act was against her will and consent, and upon the extent of the resistance which the law required her to make.'

The prosecutrix testified that the defendant asked her if she had seen Peggy, a girl who had introduced the prosecutrix and the defendant to each other. The prosecutrix said the defendant asked her to accompany him to search for Peggy, who he believed was at the Melody Lane Bar. The defendant's testimony, however, was that the prosecutrix asked him to assist her in getting her husband's car out of a bog where it was stuck and that he agreed to assist the prosecutrix.

The defense of the defendant in this case was not that usually found in such a case, that is, that he had intercourse with the prosecutrix after she had consented. His defense was a complete denial of any intimacy. According to defendant's version, he and the prosecutrix left in his truck, and the prosecutrix gave him directions. In accordance with those directions, they drove across some railroad tracks and down the road until the prosecutrix instructed him to turn into a little sandy road. The defendant turned and drove about 100 feet when the prosecutrix stated to the defendant, 'I am going to fix you and Peggy now,' opened the door and jumped out of the truck.

The defendant further testified that he wanted to see what had happened to the prosecutrix, that he turned his truck around and started coming out of the sandy road toward the main highway, that his truck then got stuck in the sand, and that he got out and walked up to the main road in search for the prosecutrix and did not find her. He then went back to jack up his truck, and while in the process of jacking up his truck, two police officers appeared and brought him back to a patrol car where he was identified by the prosecutrix.

The prosecutrix' explanation of what happened after she and defendant left The Cork Bar in his truck was that she and defendant drove towards Dixie Highway, that after crossing a railroad track, she asked where they were going, that defendant said he thought they might find Peggy at a certain dance hall, and that prosecutrix accepted the explanation. Suddenly, defendant turned onto a sand road, and when prosecutrix asked why he had done so, he said, 'I am going to rape you,' to which she replied, 'Oh, no, you are not.'

The prosecutrix further stated that after the defendant threatened to rape her, he came around to her side of the truck, that he had her on her back, but that he did not succeed the first time. Subsequently he did. The prosecutrix explained that she got out of the truck and tried to get away but that the defendant caught her after she had gotten a few steps from the truck and threw her back on the seat of the...