ENOCH DOYLE, PLAINTIFF IN ERROR,

v.

THE STATE OF FLORIDA, DEFENDANT IN ERROR

Carter, J.:

The trial court was justified in refusing the first as well as the fourth instruction, because the first sentence of each instruction announced matters of argument merely, and not principles of law. The court may, and should whenever necessary, in all criminal trials, caution the jury against convictions from prejudice or upon insufficient evidence; but it is not a rule of law that the jury must view the offense of rape as a most heinous one, or one well calculated to create strong prejudice against the accused; or that the attention of the jury be specially directed to the difficulty growing out of the usual circumstances of the crime in defending against rape; nor is it a rule of law that rape is an accusation easy to make, and hard to be defended by an accused, though he be never so innocent. In the case of Crump vs. Commonwealth (Va.), 2 Fed. & St. Cr. Rep. 433, S. C. 37 S.

E. Rep. 760; it is said that instructions of this nature are merely statements of the conclusions of the judicial mind from experience in the trial of this class of offenses rather than enunciations of principles of law, and that the oft’ repeated observation of Lord Hale, included in the fourth instruction was entirely proper by way of argument to the jury, but not as an independent instruction of law from the court. People vs. Barney, 114 Cal. 554, 47 Pac. Rep. 41.

The third instruction is also erroneous, because it requires a greater degree of resistance upon the part of a woman than the law and common sense demand where the offense is accompanied as in this case, with an exhibition of weapons and threats, calculated to-produce in the mind of the woman a reasonable fear of death or great bodily harm in case of resistance. Consent of the woman from fear of personal violence is void, and though a man lays no hands on a woman, yet if by an array of physical force, he so overpowers her that she dares not resist, his carnal intercourse with her is rape. 2 Bishop’s Criminal Law, sec. 1125; Rice vs. State, 35 Fla. 236, 17 South. Rep. 286; Clark’s Criminal Law, 188; Felton vs. State, 139 Ind. 531, 39 N.

E. Rep.

228. This instruction, utterly ignored the rule dispensing with resistance under such circumstances, and although the principles therein stated might be applicable to a case where no exhibition of weapons and threats to use them were shown in evidence, they are not correct when applied to the facts of this case, and the court properly refuses to give them. Felton vs. State, 139 Ind. 531, 39 N.

E. Rep. 228; Huston vs. People, 121 Ill. 497, 13 N.

E. Rep. 538.

The second instruction was also erroneous because it was a charge upon the weight of the evidence. By it the jury were told that prosecutrix was at the time of the alleged rape in possession of her natural mental and physical power, and not terrified by threats, or in such a position that resistance would be useless. All these were matters for the jury to determine from the evidence, and the court by giving the instruction would have taken these questions from the jury and confined the jury to the sole question whether prosecutrix resisted to the full extent of her ability. Giles vs. State, 83 Ga. 367, 9 S. E. Rep. 783.

The fourth and sixth instructions were properly refused. Both of them, when applied to the facts of this case, told tlie jury that, as a matter of law, the defendant could not be convicted upon the uncorroborated testimony of the prosecutrix. In several States such a rule is expressly enacted by statute, and in one or two others the courts have held this to be the law independent of statute. But the weight of authority, and better reason in the absence of statute, is that there is no law limiting the powers of the jury to convict on the uncorroborated testimony of the prosecutrix. 2 Bishop’s Criminal Procedure, sec. 968; Boddie vs. State, 52 Ala. 395; Barnett vs. State, 83 Ala. 40, 3 South. Rep. 612; Monroe vs. State, 71 Miss. 196, 13 South. Rep. 884.

The fourth instruction stated the law to be that a jury should receive with more than ordinary doubt and suspicion the evidence of the prosecutrix in prosecutions for rape. As without the testimony of the prosecutrix no conviction could have been had in this case, and the court charged the jury that they must give defendant the benefit of all reasonable doubts, it is apparent that had the court given this instruction, the whole controversy would have been resolved into this proposition; the defendant is entitled to the benefit of all reasonable doubts, liis guilt is proven only by the prosecutrix; her testimony must be received with extraordinary doubt and suspicion, therefore defendant is entitled to a verdict. If in any case it is proper for the court to instruct the jury that they should scrutinize the testimony of the prosecutrix with caution, no authority can be found to sustain the proposition that such testimony must, as a matter of law, be received with more than ordinary doubt and suspicion. Monroe vs. State, 71 Miss. 196, 13 South. Rep. 884; 2 Bishop’s Criminal Procedure, sec. 968; 3 Green-leaf on Evidence, sec.

212. The Judge has no power to instruct the. jury as to the weight of evidence, but only as to the rule. Williams vs. Dickenson, 28 Fla. 90, 9 South. Rep. 847.

The fifth instruction was fully covered by the general charge of the court, and was therefore proj>erly refused.

’\Ye are asked to reverse the judgment in this case upon the ground that the evidence is insufficient to sustain the verdict. In Sherman vs. State, 17 Fla. 888, it is said: "We do not think we ought to interpose our judgment, even if we differed with the jury in their conclusions. The rale is otherwise unless we can discover some evidence that the jury was improperly influenced. As to the sufficiency of this testimony and the veracity of the witnesses, the jury were the sole judges,” and this rule is binding upon us. The court below charged the jury very favorably’for the accused.

The jury were instructed, among other things, that the presumption of innocence accompanied the defendant through each step of the trial as to each material allegation, and the presumption obtained until overcome by evidence establishing guilt beyond a reasonable doubt; that the evidence must convince the minds of the jury beyond reasonable doubt of the identity of the prisoner with the person who it was claimed committed the crime, and that the prisoner did against the will of the prosecutrix, and by force, have carnal knowledge of her person, or by threats and 1'ear of death or great bodily harm, overcame any resistance upon her part, and that a reasonable doubt as*to the identity of the prisoner, or on the question ofporce, or its equivalent., fear of bodily harm or death or duress. would entitle the prisoner to an acquital. No exception was taken to any portion of the charge or any ruling upon evidence. The Judge who presided at the trial, not only approved the verdict by refusing a new trial, but imposed the heaviest penalty known to the law upon the defendant, although the statute left it discretionary with him to impose a lighter sentence.

The jury whose provence it was to-pass upon the testimony thought the proof so clear that they failed to embody a recommendation to mercy in their verdict. While the testimony of the prosecutrix might have been more lengthy in-details, and therefore more satisfactory to those minds which shudder at taking human'life fora crime sometimes so hard to defend against as rape, yet the testimony of this-woman, who is not shown to be of bad character for veracity or chastity, and who was an utter stranger to-defendant-, and therefore not apt to be influenced by motives of animosity toward him, seems to have been given in a spirit of truth, and ' sincerity, and we are not justified in saying it is untrue, when twelve jurors, whose provence it was to pass upon it, have said it was credible, and when their verdict has received the sanction and approval of the Judge who presided at the trial. The judgment is, therefore, affirmed.