Simmons v. State
| Decision Date | 13 November 1942 |
| Citation | 10 So.2d 436,151 Fla. 778 |
| Court | Florida Supreme Court |
| Parties | SIMMONS v. STATE. |
Appeal from Court of Record, Escambia County; Ernest E mason, judge.
John M Coe, of Pensacola, for appellant.
J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen for appellee.
The appellant was tried in the criminal court of record on an information charging him, in the first count, with assault with intent to commit rape and, in the second count, with attempting to have carnal intercourse with an unmarried female under the age of eighteen years and of previous chaste character. It was charged in the latter that the attempt consisted of an assault upon her. Thus, the state relied on the evidence of an assault to meet the requirements of the statute, 7544 C.G.L. 1927, Section 776.04, Florida Statutes, 1941, that where an attempt to commit an offense is alleged it must be shown that the defendant 'does [an] act toward the commission' of the offense attempted. The jury found the appellant 'guilty as charged on first and second counts of the information.'
From a perusal of the report of the testimony we are convinced that there was an abundance of evidence to establish the commission by the appellant of both offenses. We will not undertake to elaborate by giving the details of the sordid affair but will confine our discussion to the points of law involved. It was established that the prosecuting witness was unmarried so we will not again refer to her celibacy.
In one of the questions there is presented for our consideration the correctness of a charge given to the jury relative to the defendant's intention to commit rape when he made the assault, but we think that we are not required to consider the matter because it does not appear that any objection was announced to the challenged instruction until the presentation of the motion for new trial. The giving or refusal of instructions may not be assigned as error unless the objection is raised before the jury retires. Section 215 Criminal Procedure Act, Acts 1939, c. 19554, Section 918.10, Florida Statutes 1941.
The remaining two questions pertain to an instruction requested by the defendant apropos the second count and to the correctness of the sentence eventually imposed. We will treat of them in that order.
It is appellant's construction of the evidence that in the course of the assault he discovered the virginity of his victim and desisted from any further attempts to ravish her. It is our conviction, based on the testimony, that he did not abandon his attack out of any consideration for her but because he was defeated by her resistance. He requested the court to charge the jury that if they found his contention correct they should consider 'such fact' in determining whether he had 'the requisite intent to have unlawful carnal intercourse with such female of previous chaste character at the time of the commission of the assault [attempt].' The fallacy of this position is that it presupposes that an intent is an element of the basic offense denounced by the statute, that is, intercourse with an unmarried female under a certain age who has had no prior sexual experience.
This felony falls within the category of crimes 'in which, on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act.' Commonwealth v. Murphy, 165 Mass. 66, 42 N.E. 504, 505, 30 L.R.A. 734, 52 Am.St.Rep. 496, and proof of an intent is not indispensable to conviction. State ex rel. Lanz v. Dowling, 92 Fla. 848, 110 So. 522. If the defendant had had sexual intercourse with the prosecuting witness, she being at the time under eighteen years of age and of previous chastity, even without any assault upon her, it would not have been a part of the state's burden to prove any intent (See 15 Am.Jur., Criminal Law, page 9), and ignorance or mistake on the part of the defendant as to her age would hav been no excuse. Volume I, Wharton's Criminal Law, 12th Ed., page 961; 22 R.C.L., page 1193. By the same token lack of knowledge of previous chastity would have been of no avail.
The statute, denouncing the basic offense (Section 7552, C.G.L.1927, now Section 794.05, Florida Statutes 1941) is silent as to the requirement of any specific intent and is not unusual in this respect. In the case of Mills v. State, 58 Fla. 74, 51 So. 278, 281, it was said by this court that 'while all common-law crimes consist of two elements--the criminal act or omission, and the mental element, commonly called criminal intent--it is within the power of the Legislature to dispense with the necessity for a criminal intent, and to punish particular acts without regard to the mental attitude of the doer, this because of the difficulty of proving a criminal intent in some cases, or, for other reasons, public policy may require it.' Then follows this language which is particularly applicable to the instant case: 'The law makes the act the crime, and infers a criminal intent from the act itself.' Of the same import is the case of Smith v. State, 71 Fla. 639, 71 So. 915. Applying this principle to a violation of the statute with which we are dealing we find the conclusion unavoidable that it would be necessary only that the state prove the celibacy, intercourse, the age and the former chastity. If these were established by testimony beyond a reasonable doubt the intent to transgress would be implied and the conviction justified.
In the present case, as we have stated...
To continue reading
Request your trial
-
Edmond v. State, 71--596
...because the aggregate punishment did not exceed the fifteen years provided for the more serious offenses. Earlier, in Simmons v. State, 1942, 151 Fla. 778, 10 So.2d 436, the Court had referred to the harmless error rule, but, in order to establish the proper procedure in recognizing the lim......
-
Baker v. State, 80-748
...(Fla. 1st DCA 1981). 22 Judge Hurley, concurring in Borges, states that the single transaction rule first appeared in Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942), but Chief Judge Robert Trask Mann, in Edmond v. State, 280 So.2d 449 (Fla. 2d DCA 1973), traces it to Cribb v. State, 9 ......
-
Norman v. Gloria Farms, Inc., 93-2181
...to bar the appeal of instructions not objected to at trial. See Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947); Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942). Most recently, this Court applied the contemporaneous objection rule to the failure to object to instructions in Castor v. ......
-
Lanier v. State, 82-793
...as first enacted in Florida, was propounded "for the purpose of protecting the virginity of young maidens." Simmons v. State, 151 Fla. 778, 783, 10 So.2d 436, 438 (1942). See also State v. Bowden, 154 Fla. 511, 18 So.2d 478 (1944). The statute was amended to be gender-neutral in 1921, but w......