Johnson v. State, 1276
| Decision Date | 04 March 1960 |
| Docket Number | No. 1276,1276 |
| Citation | 118 So.2d 806 |
| Parties | Leamon JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Pat Whitaker, Whitaker Brothers, Tampa, and M. H. Rosenhouse, Rosenhouse & Rosenhouse, Miami, for appellant.
Richard W. Ervin, Atty. Gen., Irving B. Levenson, and Joseph Nesbitt, Asst. Attys. Gen., for appellee.
Leamon Johnson, the appellant, was convicted February 25, 1959, of the crime of rape, was adjudged guilty and sentenced to serve a 25 year term in the state prison. Thereafter the defendant took this appeal.
The defendant was charged with raping the prosecutrix on September 2, 1958. The defendant became acquainted with the girl about a year previous to the above date in a theatre in West Palm Beach. They sat together for 30 minutes after which they went across the street to a snack bar and consumed a cold drink. The defendant asked the girl for a date but she explained that before she could date a boy or man, her parents must meet and approve of him. The defendant thereafter went to the girl's house, met her parents, but they forbade her to date him. From that time until the date in question the parties did not see each other, but the defendant telephoned her almost every day.
From the prosecutrix's testimony it appears that she was 18 years of age on September 2, 1958; that she was a senior in school; that she had been uptown shopping and was sitting on a bench outside of Kress Dime Store waiting for a bus about 3:00 o'clock in the afternoon when the defendant approached her and asked if she would like a ride home. The prosecutrix consented and walked with defendant two blocks to where his car was parked. They got into the car and defendant proceeded to drive the proper route to her home. While riding along, the defendant tried to kiss the prosecutrix and she refused. It appears that some distance further the defendant stopped the car in a residential area and, according to prosecutrix's testimony, he went into the house and returned in a few minutes and during this time prosecutrix waited for him in the car. According to the defendant, he stopped and walked over and talked to a friend and then returned to the car.
They proceeded on toward home but then the defendant turned off the main highway down a county road adjoining a lake. The prosecutrix stated that she tried to jump out of the car but that defendant held her hand with his right hand thus preventing her from jumping. The defendant denied this in his testimony. They arrived at the lake at a spot where there was an overhanging tree, whereupon the defendant stopped the car and said, 'If you had let me kiss you, all of this would not have happened.' The defendant testified that he told her to 'put out or walk home,' which would have been a distance of approximately one mile. The prosecutrix stated that the defendant then slid over her and got out of the right side of the car; that he then made her lie down ('He took his hand, threatened me back with his hand'); that he stood by the car and dropped his trousers and shorts to his ankles; that all the while he was holding her legs; that he then got on top of her; that he held her hand with one of his hands while lifting her dress and removing her panties with his other hand; that she tried to get up, causing a small tear in her skirt; that she screamed once; that intercourse then took place, lasting for about 15 to 20 minutes; and that she 'shoved his shoulders' but did not cross her legs or resist in other ways.
This all took place around 3:30 p. m. It was drizzing rain, which accounts for the only evidence of soiling on the prosecutrix's clothes and undergarments. There was no tear in the panties and only the small tear, mentioned above, in the dress. There is no evidence as to the physical stature or strength of either of the principals. The girl was 18 and the defendant was 21. When the prosecutrix was asked if she tried to escape, she answered,
After the act was consummated, the prosecutrix stated that the defendant got out of the right door and put his clothes back on; that he then slid back over her to the driver's side; that she then dressed herself and closed the right car door; that he took her home, during which time they discussed why she would not date him; that at no time did the defendant threaten her with any weapon; and that they arrived home at approximately 4:00 p. m., a period of one hour from the time they left town together.
The defendant testified that the prosecutrix did not try to get out of the car while driving to the lake; that upon arriving at the lake, he got out of the left side of the car and walked around to the right front door and undressed; that the prosecutrix cooperated and acquiesced to his advances; that while driving home they laughed and joked; and that no resistance or resentment was manifested by the prosecutrix at any time.
The mother of the prosecutrix arrived home about 4:30 p. m. and found the prosecutrix doing her homework. Upon noticing that the girl was upset, she questioned the girl sometime later about what was troubling her. The girl finally broke down and told the mother about the incident, whereupon the mother called the sheriff.
A doctor testified that there were no bruises or marks of any kind on the prosecutrix when he examined her some three or four hours after the incident. He did state that there was evidence of recent intercourse but that the girl was not unusually upset or nervous at this time in view of the nature of the examination.
This court has carefully reviewed all the evidence from the transcript filed in this case and has concluded from such study that the defendant should be granted a new trial.
Florida Statutes, § 794.01, 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 * * * shall be punished by death, unless a majority of the jury in their verdict recommend mercy, in which event punishment shall be by imprisonment in the state prison for life, or for any term of years within the discretion of the judge. * * *'
It will be observed that the statutory definition of rape requires such act to be accompanied by force and against the will of the female participant. A conviction may be obtained in Florida for rape on the unsupported testimony of the prosecuting witness when such witness is not fully impeached or discredited, particularly where there are corroborative facts and circumstances in evidence. See Ex parte Tully, 70 Fla. 1, 66 So. 296; Annotation 60 A.L.R. 1124; and Truluck v. State, Fla.1959, 108 So.2d 748. Where the sole witness to the prosecution is the prosecutrix, her testimony is required to be rigidly scrutinized to avoid an unmerited conviction. See Coker v. State, 83 Fla. 672, 93 So, 176.
In a landmark case of this Stste, that of Hollis v. State, 27 Fla. 387, 9 So. 67, the Supreme Court granted a new trial in a rape case because of the insufficiency of the evidence as to force or fear to supply resistance on the part of the prosecutrix. The pertinent evidence is set out in the opinion of the Court as follows:
"My name is * * * 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 had 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 underclothing, 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 people passing about their places. * * * "
There was other testimony in the record but apparently the testimony of the prosecutrix was the basis of the Court's decision to grant a new trial. The Supreme Court, in its opinion in the above case, further stated:
'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. * * *
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