MARVIN D. PHILLIPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Marvin D. Phillips was convicted of rape and sentenced to death. The Florida Supreme Court affirmed his conviction, rejecting arguments that the evidence was insufficient to show penetration and that the trial court's jury instruction regarding parole and pardon was error.
The evidence was sufficient to support the rape conviction when examined as a whole, with the medical testimony and police evidence establishing every essential element of the crime. The trial court's instruction regarding parole and pardon was harmless error, if error at all, and actually benefited the appellant.
“The evidence has been thoroughly examined and while there is some evidence that if construed in isolation might leave one in doubt and lead to a different verdict but when read and construed as a whole there was ample support for the verdict.”
Establishes the standard that evidence must be evaluated as a whole, not in isolation, to determine sufficiency of conviction for rape.
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Join FLexlaw to unlock all legal intelligencePhillips was indicted and tried for rape in Collier County. A jury found him guilty without recommendation to mercy, and the trial court imposed the d…
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TERRELL, Chief Justice.
Marvin D. Phillips was indicted and tried for rape in Collier County. The jury returned a yerdict of “guilty of rape” as charged in the indictment, without recommendation to mercy. The court imposed the extreme penalty, death by electrocution. Motion for new trial was overruled and this appeal was prosecuted.
It is first contended that the evidence was not sufficient predicate for the verdict and judgment.
In support .of this contention appellant says that there is no showing of penetration, an essential element of rape as required by Section 794.01, Florida Statutes, F.S.A. Williams v. State, 53 Fla. 84, 43 So. 431; State v. Bowden, 154 Fla. 511, 18 So. 2d 478, and Barker v. State, 40 Fla. 178, 24 So. 2d 69, are relied on to support this contention. There is no quarrel with the law enunciated in these cases. If we had a similar state of facts here they would be pertinent. The evidence has been thoroughly examined and while there is some evidence that if construed in isolation might leave one in doubt and lead to a different verdict but when read and construed as a whole there -was ample support for the verdict. It is conclusively supported by the evidence of Dr. Ethel H. Trygstad, Dr. John J. Meli and .the evidence of Chief of Police, of Naples, with reference to the confession of appellant wheq he was taken in custody.
It is next contended that the trial court committed error when he informed the jury, at the request of the foreman, the possibility of parole or pardon in case they return a verdict of guilty with recommendation of mercy.
Osius v. State, 96 Fla. 318, 117 So. 859, is relied on to support this contention. We do not think Osius v. State is in point with or supports the contention in this case. In fact we cannot see that the charge was harmful but on the other hand, while not altogether clear, if the charge had any effect whatever it was to the advantage of appellant and harmless. McKee v. State, 159 Fla. 794, 33 So. 2d 50; Cason v. State, 159 Fla. 294, 31 So. 2d 274. The statute, Section 918.10(1), Florida statutes, F.S.A., directs the court to charge on the penalty as he does on the law. The charge complained of dealt with the question of pardons and paroles in a rather general way and there is nothing in the judgment or sentence to indicate that any harm was done.
The victim of appellant’s' .outrage was a girl eleven years old. The evidence of the two physicians and the Naples Chief of Police pointed out in the forepart of this opinion shows every essential element of the crime of rape. We do not think this opinion contributes anything new to the law of rape but we are adjudicating a capital case and this court is committed to the doctrine that in disposing of such cases its reasons therefor should be expressed in writing, otherwise a per curiam affirmance would be ample.
The judgment appealed from is therefore affirmed.
Affirmed.
HOBSON, ROBERTS, DREW, THOR-NAL and O’CONNELL, JJ., concur. THOMAS, J., not participating.
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Singer v. State, 109 So. 2d 7 (Fla. 1959)…el objected, and the objection was overruled. On the italicized portion of the above statement the State urges that there was no resultant harm to defendant and cites McKee v. State, 1947, 159 Fla. 794, 33 So. 2d 50 and Phillips v. State, Fla.1957, 92 So. 2d 627, which cases involved discussions of parole of convicted persons by a trial court. The State also urges that it is common knowledge that a penitentiary is not inviolate and cites authorities in support of this contention. We agree that, considered…
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Lemuel Dean Burnette v. State, 157 So. 2d 65 (Fla. 1963)…elf and standing alone, constitute harmful error. Giving such a charge, however, in all cases where the supreme penalty may attach to the verdict could in many instances prevent a possible miscarriage of justice. Anything in Phillips v. State, Fla., 92 So. 2d 627, contrary to or in conflict with the views herein expressed are hereby receded from and overruled. In the light of the disclosures of this record and for the reasons herein discussed we conclude that the interests of justice require a new trial. It…
Authorities Cited
- State v. Rubin Bowden, 154 Fla. 511 (Fla. 1944)
- McKee v. State, 159 Fla. 794 (Fla. 1947)
- Barker v. State, 40 Fla. 178 (Fla. 1898)
- Williams v. State, 53 Fla. 84 (Fla. 1907)
- Osius v. State, 96 Fla. 318 (Fla. 1928)
- Cason v. State, 159 Fla. 294 (Fla. 1947)
- Geller v. Smik, 159 Fla. 223 (Fla. 1947)