Jimenez v. State

• Decision Date: 08 April 1947
• Parties: JIMENEZ et al. v. STATE.
• Court: Florida Supreme Court

30 So.2d 292

158 Fla. 719

JIMENEZ et al. v. STATE.

Florida Supreme Court

April 8, 1947

Rehearing Denied May 19, 1947.

Appeal from Circuit Court, Hillsborough County; Harry N Sandler, judge.

William C Pierce, of Tampa, for appellants.

J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.

McNEILL, Associate Justice.

On March 22, 1946 appellants Samuel Jimenez and Diego Hernandez, and one Raymond Rodriguez, who has not appealed, were by the Grand Jury of Hillsborough County indicted for the offense of rape of one Kathryn Ragan. This indictment consisted of two counts, the first count charged that the three above named defendants on the 19th day of February, 1946, in the County of Hillsborough, 'In and upon one Kathryn Ragan, a female over the age of ten years, did unlawfully make an assault on her, the said Kathryn Ragan, and then and there did unlawfully ravish and carnally know by force and against the will of her, the said Kathryn Ragan.' The second count charged that on the 19th of February, 1946, in the County of Hillsborough, defendant, Diego Hernandez 'in and upon one Kathryn Ragan, a female over the age of ten years, did unlawfully make an assault on her, the said Kathryn Ragan, and then and there did unlawfully ravish and carnally know, by force and against the will of her, the said Kathryn Ragan, and that Samuel Jimenez and Raymond Rodriguez were then and there present, unlawfully aiding, abetting, assisting, procuring, encouraging, counselling and advising the said Diego Hernandez in the manner and form aforesaid, to do and commit, and so the said Diego Hernandez, Samuel Jimenez and Raymond Rodriguez, did in the manner and form aforesaid, unlawfully make an assault on her, the said Kathryn Ragan, and then and there did unlawfully ravish and carnally know, by force and against the will of her, the said Kathryn Ragan,' so it is by the first count of the indictment all three above named defendants were charged as pricipals in the first degree, and by the second court, Diego Hernandez was charged as principal in the first degree and Samuel Jimenez and Raymond Rodriguez as principals in the second degree. Before arraignment defendants jointly and severally moved to quash the first and second counts of the indictment, respectively, on several grounds. This motion was denied, and upon a joint trial of all three said defendants, each of them was convicted of the offense of assault with intent to commit rape. Thereupon, motion for new trial was filed by all three defendants on a number of grounds.

In due season this motion was denied, and thereupon, appellants Diego Hernandez and Samuel Jimenez were each by the trial Court adjudged guilty of assault with intent to commit rape and appellant Hernandez was sentenced to five years imprisonment, and the appellant Jimenez was sentenced to three years imprisonment in the State Prison, whereupon, Diego Hernandez and Samuel Jimenez, each, severally, appealed.

In their brief seven questions are presented by appellants. The first, second and third questions are so related that we will consider them together.

First Question Upon a trial under an indictment for rape where the prosecutrix testified positively that the defendants raped her and had completed acts of sexual intercourse with her, and the defendants admitted having such completed acts of sexual intercourse with her, but testified that such acts were had with the consent of prosecutrix, could there be a valid conviction of the offense of assault with intent to rape?

Second Question. Where the evidence shows that the defendants are either guilty of the higher grade of offense, or are innocent, did not the trial Court commit reversible error by instructing the jury as to lesser and included offenses?

Third Question. Should not the lower Court have instructed the jury to convict defendants of the crime of rape or to acquit them?

Section 919.14, Florida Statutes of 1941, F.S.A., provides: 'If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree, the jurors may find the defendant guilty of the degree charged, or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.' And Section 919.16, Florida Statutes of 1941, F.S.A., provides, 'upon an indictment or information for any offense the jurors may convict the defendant of an attempt to commit such offense, if such attempt is an offense, or convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.'

In the case of Ruby Jean Hodella v. State, Fla., 27 So.2d 674, the appellant was charged with the offense of murder in the second degree and was convicted of manslaughter. On appeal she contended the evidence showed that the appellant was either guilty of murder in the first degree or that the homicide was justifiable and that, therefore, she could not legally be convicted of manslaughter, but in affirming her conviction, this Court said: 'We entertain the view that the evidence was sufficient to have sustained a conviction of murder in the first degree, and it, therefore, was sufficient to sustain a conviction of any lesser degree of unlawful homicide,' and cited Ammons v. State, 88 Fla. 444, 102 So. 642, 644, where defendant was charged with murder in the first degree, and convicted of murder in the second degree, and where the Court in affirming the judgment said: 'In the case at bar, the evidence for the State tends clearly to establish the crime of murder in the first degree. What reason impelled the jury to return a verdict of murder in the second degree need not be inquired into, as a verdict of murder in that degree will be sustained if the evidence would support a verdict of a higher degree of homicide, because the defendant's guilt as to every grade of unlawful homicide is involved upon a trial for murder in the first degree,' and further stated, 'The evidence was ample to support a verdict of murder in the first degree, and the defendant cannot claim reasonably to be injured by the verdict, because the evidence was more than sufficient to convict him.'

In Brown v. State, 31 Fla. 207, 12 So. 640, 642, appellant was charged with murder in the first degree and was convicted of manslaughter in the second degree. In affirming this judgment, the Court said: 'The offense of which there has been a conviction is inculded within or may be carved out of that major offense charged in the indictment, and the indictment is sufficient to sustain the conviction * * *. And the fact that the evidence is more than sufficient to support the conviction does not render it insufficient to do so, and the prisoner is in nowise hurt by that excess of its probative force which the jury has ignored.' See also Roberts v. State, 94 Fla. 149, 113 So. 726, Prevatt v. State, 82 Fla. 284, 89 So. 807, Bowden v. State, 152 Fla. 715, 12 So.2d 887, and 42 Corpus Juris Secundum, Indictments and Informations, § 299, p. 1327: 'The general rule is that accused may be convicted of a lesser degree of an offense, or a lesser included offense, even though the proof shows that he was guilty of the greater degree or greater offense, as where he is indicted only for the lesser offense and the proof shows commission of a greater crime inclusive of the lesser one charged, or where he is indicted for the greater offense, the allegation being inclusive of the lesser offense, and the proof shows commission of the greater offense, and under the principles of harmless error discussed in Criminal Law, § 1941, accused may not complain of error in finding him guilty of a lesser crime than that shown by the evidence or charged in the indictment.'

We have not overlooked the authorities cited by appellants in support of their first, second and third questions supra, but we think the rule is well settled in this State under the Statutes and authorities above cited, that the jury had the power to convict appellants of the offense of assault with intent to commit rape even though the evidence was sufficient to convict them of rape as charged in the indictment. Again, referring to appellants' second and third questions, it appears from the record that at the conclusion of the testimony the Court in the absence of the jury submitted his proposed charges to counsel for appellants and no objection was made thereto, and no further charges were requested, nor did the appellants complain of the charges given by the Court or the Court's failure to give any other or further charges at any time prior to the verdict. They had ample opportunity to object to such charges, or to request further charges before the charges were delivered and again when the charge of the Court was delivered, and the record shows that the jury twice returned to the Court Room for further instructions and at no time did appellants object to the charges now complained of, or to the failure to give other charges as they were required to do by Subdivision (4), Section 918.10, Florida Statutes of 1941, F.S.A. So we hold that it was the duty of the trial court to charge the jury as to the lesser offense of assault with intent to commit rape, which offense was in law included in each count of the indictment, and the defendants were not entitled to have the jury directed to either convict of rape, or to acquit.

Appellants were not convicted of assault and battery so it is unnecessary for us to discuss that feature of the Trial Court's charge.

Appellants' Fourth and Fifth questions are so related that we will consider...