Simmons v. State

CourtUnited States State Supreme Court of Florida
Writing for the CourtAuthor: Thomas
Citation10 So.2d 436,151 Fla. 778
PartiesSIMMONS v. STATE.
Decision Date13 November 1942

10 So.2d 436

151 Fla. 778

SIMMONS
v.
STATE.

Florida Supreme Court

November 13, 1942


[10 So.2d 437]

[151 Fla. 780] 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.

THOMAS, Justice.

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 [151 Fla. 781] '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 [10 So.2d 438] 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 [151 Fla. 782] 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.' ...

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50 practice notes
  • Edmond v. State, No. 71--596
    • United States
    • Court of Appeal of Florida (US)
    • June 27, 1973
    ...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 limits of t......
  • Baker v. State, No. 80-748
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1982
    ...(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., No. 93-2181
    • United States
    • Court of Appeal of Florida (US)
    • February 7, 1996
    ...the appeal of instructions not objected to at trial. See Febre v. State, 158 Fla. Page 1030 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 ......
  • Lanier v. State, No. 82-793
    • United States
    • Florida District Court of Appeals
    • December 13, 1983
    ...794.05, 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 192......
  • Request a trial to view additional results
50 cases
  • Edmond v. State, No. 71--596
    • United States
    • Court of Appeal of Florida (US)
    • June 27, 1973
    ...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 limits of t......
  • Baker v. State, No. 80-748
    • United States
    • Court of Appeal of Florida (US)
    • December 8, 1982
    ...(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., No. 93-2181
    • United States
    • Court of Appeal of Florida (US)
    • February 7, 1996
    ...the appeal of instructions not objected to at trial. See Febre v. State, 158 Fla. Page 1030 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 ......
  • Lanier v. State, No. 82-793
    • United States
    • Florida District Court of Appeals
    • December 13, 1983
    ...794.05, 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 192......
  • Request a trial to view additional results

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