Summary
In Pittman v. State, 47 So.2d 691 (Fla.1950), a case analogous to the instant case, the Florida Supreme Court considered the offense of attempted sexual intercourse with an unmarried female of previous chaste character under the age of eighteen years (statutory rape).
Summary of this case from Tulier v. StateOpinion
August 1, 1950.
Appeal from the Circuit Court, Okaloosa County, D. Stuart Gillis, J.
Wm. W. Flournoy, De Funiak Springs, for appellant.
Richard W. Ervin, Attorney General, and Reeves Bowen, Assistant Attorney General, for appellee.
The information filed in this case charged that the appellant (defendant below) "Herman Pittman, did unlawfully attempt to have carnal intercourse with one Jeneze Richburg, who was then and there an unmarried female person of previous chaste character under the age of 18 years, and in furtherance of said attempt did an act toward the commission of such offense in that he, the said Herman Pittman, did say in the presence of and directly to the said Jeneze Richburg words in substance and in effect to the said Jeneze Richburg as follows, to-wit: I want to take you (sic) a dance; I want to take you to the movies and invited her to go the (sic) a dance, or the movies or on a party with him, the said Herman Pittman, and called her endearing names, and upon such invitations being refused by the said Jeneze Richburg he, the said Herman Pittman, then asked and invited the said Jeneze Richburg to go out of the building in which they were both then working into adjoining woods for the purpose of having sexual intercourse with each other in said woods, or with the intent on the part of the said Herman Pittman to have unlawful carnal intercourse with the said Jeneze Richburg, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of Florida."
No steps to quash this information were taken. The jury, after hearing testimony, which did no more than substantiate the allegations of the information, found the defendant "guilty as charged". After the state rested its case counsel made a motion for a directed verdict in favor of the defendant (appellant here). Said motion raised the legal sufficiency of the information to state a criminal offense and challenged the evidence as being legally insufficient to support a verdict of "guilty". The trial judge denied this motion in the following language: "The Court is a little bit curious to know why you didn't, if you take the position that you do now, why you didn't move to quash the information. The information itself does not show any overt act. If you had moved to quash this information, the Court would have had an opportunity to make some investigation of the law, but since you have not done that, the motion will be denied, and exception will be noted. Let the jury come back."
We agree with the learned Circuit Judge that the better procedure would have been for the defense counsel to have moved to quash the information but we cannot be persuaded to hold that the motion for a directed verdict for that reason should have been denied. We have reached the conclusion that the motion should have been granted. See Sec. 918.08, Fla.Statutes 1941, F.S.A., and compare the reasoning in the civil case of Berger v. Mabry, 113 Fla. 31, 151 So. 302.
Subsequent to the entry by the trial court of its judgment on the verdict, counsel for defendant made what he entitled "Motion for a New Trial" but which was tantamount to a motion in arrest of judgment. § 920.02(1), Fla. Stat. 1941, F.S.A. The motion was denied and this appeal followed.
The question before us is whether the information states facts showing that a criminal offense had been committed for we have held that if no crime is alleged in the information, it will not support a verdict of conviction, and judgment ought to be arrested on motion. Criner v. State, 92 Fla. 483, 109 So. 417.
We find that the allegations of fact made in the information are not sufficient to charge a criminal offense.
Justice Sebring, speaking for the Court, in State v. Bowden, 154 Fla. 511, 18 So.2d 478, 480, pointed out that, "In an assault with intent to have unlawful carnal intercourse with an unmarried female of previous chaste character under the age of eighteen years the intent to then and there have sexual intercourse with the female is the gravamen, and in the absence of an intent to have unlawful intercourse with the female the crime has not been perpetrated. Also, there must be some overt act directed to the consummation of the unlawful intent and amounting to an assult upon the female." (Italics supplied.)
In Alford v. State, 132 Fla. 624, 181 So. 839, 840, we said: "There is little, if any, difference between the acts necessary to constitute an attempt to have sexual intercourse with an unmarried female under eighteen years of age of previous chaste character and the acts necessary to constitute the offense of assault with intent to commit the same offense."
The "difference" between an assault with an intent to commit this offense and an attempt to commit it is in the nature or character of the overt act. Where an attempt is charged the overt act need not be of such force and violence as to constitute a legal assault. In fact, considering that consent is no defense against a charge of statutory rape, we can envisage many acts which would amount to attempts to perpetrate the crime under consideration.
Be that as it may, to constitute an attempt there must be some overt act amounting to more than mere preparation. The facts alleged and established in this case constitute, at most, only solicitation — a mere preparation. In the case of Gustine v. State, 86 Fla. 24, 97 So. 207, we said: "To constitute an attempt to commit a crime there must be an intent to commit the crime, coupled with an overt act apparently adapted to effect that intent, carried beyond mere preparation, but falling short of execution of the ultimate design."
Although the conduct of the appellant as shown by the record was indeed reprehensible, there was no allegation in the information, nor was any proof adduced, of an overt act sufficient to establish a criminal attempt. The nearest approach to proof of the allegation that the defendant importuned the prosecutrix to go into the woods "for the purpose of having sexual intercourse" was her answer to the question, "What did you understand him to mean by wanting to go in the woods?" She replied, "Well, as intercourse, is what I would think it was."
The judgment should be reversed with directions that the motion for a new trial be granted, the judgment arrested, and the defendant discharged under the present information on which he was tried.
It is so ordered.
TERRELL, CHAPMAN, THOMAS, and SEBRING, JJ., concur.