Rice v. State

• Decision Date: 16 April 1895
• Citation: 35 Fla. 236,17 So. 286
• Parties: RICE v. STATE.
• Court: Florida Supreme Court

17 So. 286

35 Fla. 236

RICE v. STATE.

Florida Supreme Court

April 16, 1895

Error to circuit court, Polk county; Barron Phillips, Judge.

Benjamin F. Rice was convicted of rape, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. On the trial of the defendant for rape, the prosecutrix was asked the question, 'Did you ever have intercourse with the defendant, or any other man, previous to last Monday morning?' (the time of the alleged offense). The avowed object of the question was to impeach the reputation of the prosecutrix for chastity, and to show a probability of consent to the act. Held inadmissible for the purposes stated. The question should have been limited to such acts of intercourse with the defendant.

2. Upon a trial for rape, the character of the prosecutrix for chastity, or the want of it, is competent evidence as bearing upon the probability of her consent to the defendant's act; but the impeachment of her character in this respect must be confined to evidence of her general reputation except that she may be interrogated as to her previous intercourse with the defendant, or as to promiscuous intercourse with men, or common prostitution.

3. If at the time a man has carnal knowledge of a female, her mind is overpowered by fear, induced by the man, wherefore she makes no resistance, it is rape. Though a man lays no hands on a woman, yet if, by an array of physical force, he so overpowers her that she dare not resist, his carnal intercourse with her is rape.

4. The facts and circumstances of this case being insufficient to show the guilt of the defendant beyond a reasonable doubt the judgment should be reversed, and a new trial awarded.

COUNSEL Frank Clark and Samuel T. Fletcher, for plaintiff in error.

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

OPINION

LIDDON J.

The plaintiff in error was convicted of the crime of rape upon one Helen Smith, his stepdaughter. At the trial the defendant's counsel propounded the following question in cross-examination of the prosecutrix, to wit: 'Did you ever have intercourse with this defendant, or any other man previous to last Monday morning?' The time inquired about was that at which the offense was committed, as shown by her examination in chief. The ruling of the court sustaining an objection to this question is assigned as error. The assignment is not well taken. The avowed object of the question was to impeach the chastity of the prosecutrix, and to show a probability of her consent to carnal intercourse with the defendant. If the question had been confined to the matter of acts of intercourse between the prosecutrix and the defendant, it would have been admissible, but she could not be interrogated as to such acts with other persons than the defendant. On a trial for rape, the character of the prosecutrix for chastity, or the want of it, is competent evidence as bearing upon the probability of her consent to defendant's act; but the impeachment of her character in this respect must be confined to evidence of her general reputation, except that she may be interrogated as to her previous intercourse with the defendant, or as to promiscuous intercourse with men, or common prostitution. State v. Forshner, 43 N.H. 89, and authorities cited; McQuirk v. State, 84 Ala. 435, 4 So. 775; 3 Greenl. Ev. (15th Ed.) § 214; State v. Knapp, 45 N.H. 148; McDermott v. State, 13 Ohio St. 332; McCombs v. State, 8 Ohio St. 643, and numerous authorities cited in text. The rule we here adopt is one sanctioned by the preponderance of authority. It has, however, in some states been held otherwise. See note c to section 214, 3 Greenl. Ev. (15th Ed.); State v. Reed, 39 Vt. 417; and People v. Benson, 6 Cal. 221. The Vermont case cited states the proposition in a very doubting, hesitating way. It cites no authorities, and the principal reason assigned for so holding is that the question had already been so decided in that state, though the decision was by a divided court. Not only is the rule which we adhere to better founded in authority, but we think more in accordance with reason and justice. The fact that a woman may have been guilty of illicit intercourse with one man is too slight and uncertain an indication to warrant the conclusion that she would probably be guilty with any other man who sought such favors of her. If she was a woman of general bad reputation for chastity, or had been guilty of acts of lewdness with the defendant, the case would be different. In the first instance, the evidence would bear directly upon the question as to whether such a woman would be likely to resist the advances of any man; and, in the second, as to whether, having yielded once to the sexual embraces of the defendant, she would not be likely to yield again to the same person. The greatest objection to such testimony is that it introduces collateral issues, which have no direct bearing upon the defendant's guilt. Although the prosecuting witness may have been guilty of specific acts of unchastity, such acts afford no justification to the defendant for having ravished her. She is still under the protection of the law, and not subject to a forced violation of her person by every man who has the strength to overpower her. If she denied having acts of carnal intercourse with other men, of course the defendant would attempt to prove specific acts in contradiction of her denial, and there would be presented to the jury other collateral issues calculated to embarrass and mislead them, and in no way decisive of the guilt or innocence of the accused. McDermott v. State, 13 Ohio St. 332; Boddie v. State, 52 Ala. 395.

In the further progress of the case, the specific question was asked the prosecutrix as to...