Russell v. State
| Decision Date | 15 February 1916 |
| Citation | 71 So. 27,71 Fla. 236 |
| Parties | RUSSELL v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.
Habeas corpus by George W. Russell to be admitted to bail. Writ was denied, and Russell brings error. Reversed.
Additional Syllabus by Editorial Staff.
Syllabus by the Court
Section 3221 of the General Statutes defines two phases of the crime of rape, one where the crime is committed upon a female child of the age of 10 years or more, and the other where the crime is committed upon a female child under the gae of 10 years. In the former case the elements of force and consent are material, while in the latter they are not material.
Upon an application for a writ of habeas corpus to admit a defendant to bail who is under indictment for rape, the court may look to the indictment to determine whether that phase of the crime of rape is charged in which the elements of force and consent are material.
In an application for bail under an indictment for rape, the indictment is not conclusive of the defendant's guilt but the burden is upon him to show that the proof is not evident and the presumption is not great; the indictment is merely a strong prima facie showing that the accused is rightfully held in custody and not entitled to bail.
In an application for bail under an indictment for a capital crime the question for the court to whom the application is made is not whether the evidence adduced is sufficient to establish guilt beyond a reasonable doubt, but whether the evidence including that of the state, which the applicant must produce, is sufficient to establish that degree of proof showing evident guilt or great presumption of guilt, which is of a higher degree of proof than that which would sustain the verdict of a jury.
The word 'evident' has been defined as clear to the understanding and satisfactory to the judgment. Its synonyms are manifest, clear, plain, obvious, conclusive. The word 'manifest' means to put beyond question of doubt.
COUNSEL A. G. Hartridge and J. Turner Butler, both of Jacksonville, for plaintiff in error.
T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
George W. Russell was indicted by the grand jury of Duval county for rape. The indictment, omitting venue, title and signature of state attorney, is as follows:
A capias issued upon the filing of the indictment, and Russell was taken into custody and incarcerated in the county jail to await trial. Upon a writ of habeas corpus applied for by him to admit him to bail, the court denied the bail and remanded Russell to the custody of the sheriff of Duval county, to be safely kept until otherwise directed by some court of competent jurisdiction. To this order Russell took writ of error.
Rape is a capital offense in this state. Section 3221, Gen. Stats, of Florida.
Section 9 of the Declaration of Rights of the Constitution of Florida provides that:
'All persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great.'
Section 3221 of the General Statutes of Florida is as follows:
The offense of rape is one defined by the statute, and the charge in the indictment must be in the language of the statute or language of equivalent import. The circumstances which constitute the definition of the offense denounced by the statute must be stated in the indictment. Nothing will be taken by intendment. The defendant should be brought within all the material words of the statute. See Humphreys v. State, 17 Fla. 381; Barber v. State, 13 Fla. 675; Cook v. State, 25 Fla. 698, 6 So. 451.
Section 3221 defines two phases of the crime of rape; one where the crime is committed upon a female child of the age of 10 years or more by force and against her will, the other where the offense is committed upon a female child under the age of 10 years. In the one case the offense cannot be proved except by s showing upon the part of the state that the offense was committed by force and against the will of the female, while in the other case the offense is established by showing that the defendant had carnal knowledge of the child, and that she was under 10 years of age. In the latter case the element of force or consent of the child is immaterial. See Schang v. State, 43 Fla. 561, 31 So. 346; Wilson v. State, 50 Fla. 164, 39 So. 471. The indictment in this case, it will be seen, charges the offense of rape under that phase of the crime where the act is committed upon a child 10 years of age or more, and where the elements of force and consent are material. There is nothing in the record to show that the person upon whom the offense was alleged to have been committed was not in possession of her mental and physical faculties, nor that she was of an unenlightened mind, but, being 10 years of age or more, she was presumed to be enlightened.
In the case of Barker v. State, 40 Fla. 178, 24 So. 69, this court held that the law presumes a female under the age of 10 years cannot consent to carnal intercourse, but above that age she may, but that in determining whether or not she does consent when over 10, her age may be considered and her knowledge as to such matters. See, also, Hollis v. State, 27 Fla. 387, 9 So. 67.
The court below did not consider the girl to be of such tender years as to allow the state attorney to propound to her grossly leading questions in her examination as a witness, and her own testimony is not of such character as to show that the proof was evident and the presumption great that the act was accomplished by force and against her consent. The manner of the commission of this alleged offense, the circumstances, time, and place were all material in this investigation as bearing upon the question of resistance and consent.
In a proceeding of this character the indictment is not conclusive of the defendant's guilt, but the burden of proof is upon the accused to show that the proof is not evident and the presumption is not great. See Finch v. State, 15 Fla. 633; Holley v. State, 15 Fla. 688; Benjamin v. State, 25 Fla. 675, 6 So. 433; Rigdon v. State, 41 Fla. 308, 26 So. 711.
The question is not whether the evidence adduced on an application for bail is sufficient to establish guilt beyond a reasonable doubt, but whether the evidence is sufficient to establish that degree of proof where the judge to whom the application is made may say that guilt is evident or the presumption is great, which is a greater degree of proof than that establishing guilt merely to the exclusion of a reasonable doubt.
The word 'evident' is defined by Webster as 'clear to the understanding and satisfactory to the judgment.' Synonyms: 'Manifest, plain, clear, obvious, conclusive.' The work 'manifest' is defined as follows: 'To put beyond question of doubt.' In a trial this degree of proof is not required, for it not infrequently happens that upon a conviction the court will refuse to grant a new trial because there is evidence to support the verdict, although to his mind guilt may not have been established to the point of being manifest, obvious, beyond a question of doubt, yet it is to the court to whom application for bail is made, and his judgment is invoked as to the degree of proof established by the evidence, and not what a petit jury not yet impaneled may possibly decide as to the probative force of the evidence.
If, therefore, when an application is made to the court for bail in a capital case after indictment, the question for him is whether, considering the indictment, and all the evidence for the state, and that adduced in behalf of the defendant, the proof of guilt is evident or the presumption raised thereby is great.
Under the common-law practice bail was generally refused after indictment, because the court could not know on what evidence the grand jury acted, and by a legal fiction the proof thus offered was treated pro forma as 'evident,' and the presumption thereby arising 'great.' 3 R. C. L. p. 14. But under our Constitution and the decisions of this court the indictment is not regarded as conclusive. Rigdon v. State, supra; Gainey v. State, 42 Fla. 607, 29 So. 405. In which latter case the court held that:
'Where the proofs in such a case go no further than to establish a probability of guilt, they are not sufficient either to sustain a verdict of conviction or to call for a denial of bail.'
In that case application was made for bail after indictment for a capital crime.
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