EUGENE CORKY SEELY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Eugene Seely was convicted of assault with intent to commit rape after a jury trial. He appealed challenging the admission of his co-defendant's confession that he had adopted, alleged judicial comment on the weight of evidence, and the sufficiency of the evidence, all of which the court rejected.
The court held: (1) the confession was properly admitted because Seely adopted portions of it as his own after being warned of his rights; (2) the alleged offending phrase, when read in context with all instructions, did not constitute a comment on the sufficiency of evidence; and (3) the evidence was sufficient because intent to consummate the act regardless of resistance is the gravamen of the offense, and unusual physical force is not a necessary element if such intent is present.
“where an accomplice makes a confession and the defendant adopts portions of that confession as his own, those portions so adopted may be admitted into evidence against the defendant”
Establishes the legal standard for admitting co-defendant confessions when adopted by the defendant
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Join FLexlaw to unlock all legal intelligenceSeely and William Eugene Bolt were indicted for forcible rape. Seely was tried separately and the jury found him guilty of the lesser included offense…
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Defendant, appellant here, and one William Eugene Bolt were indicted for the crime of forcible rape. Appellant was tried separately before a jury which returned a verdict of guilty of the lesser included offense of assault with intent to commit rape. Following post-trial motions this appeal was perfected, and appellant raises three questions.
It is first contended that the trial court erred in permitting a written confession by Bolt to be admitted into evidence against Seely, the defendant. While it is true that ordinarily the confession of a co-defendant or accomplice is not admissible in evidence against a defendant, we believe this case is governed by the decision in Trimble v. State, 143 So.2d 331 (D.C.A. Fla.1962). There it was held in effect that where an accomplice makes a confession and the defendant adopts portions of that confession as his own, those portions so adopted may be admitted into evidence against the defendant.
Here it was shown that Bolt signed a confession implicating appellant which was subsequently read to appellant. Detective McMullen testified that appellant, after having been warned of his constitutional rights, stated orally that Bolt’s written statement was a correct account of what occurred on the night in question. We believe the trial judge committed no error in admitting the confession under these circumstances.
Appellant next asserts that the trial judge commented on the weight of the evidence while instructing the jury. In support of this contention appellant has lifted the alleged offending phrase from the context of the instructions, quoting it as:
“ * * * [I]t may well be that you could find from the evidence beyond and to the exclusion of every reasonable doubt that he is guilty of the crime of assault with intent to commit rape as so defined.”
When this phrase is read in context and in connection with all the instructions given the jury, it becomes abundantly clear that the above did not constitute a comment upon the sufficiency of the evidence and that no error was committed. Compare, Mendenhall v. State, 71 Fla. 552, 72 So. 202 (1916).
The final argument proposed by appellant is that the evidence is insufficient to sustain the verdict. “ * * * The gravamen of the crime of assault with intent to commit rape is that the intent of the accused was to consummate the act regardless of resistance and want of consent. * * * ” Manning v. State, 93 So.2d 716 (Fla.1957). The Manning case, supra, is similar to the instant case, and, while appellant asserts there was no evidence of the use of any unusual physical force, it is clear from the decision in Manning that such force is not a necessary element if the intent of the accused was to consummate the act regardless of resistance. Furthermore, one may be guilty of assault to commit rape even though the female who first resists subsequently gives her consent and intercourse is achieved. Gadsden v. State, 77 Fla. 627, 82 So. 50 (1919); Manning v. State, supra.
There was some conflict in testimony at the trial. The jury heard the witnesses, and it goes without saying that it is the jury’s duty to resolve the conflicts in testimony.
It is for the foregoing reasons that we affirm the judgment and sentence of the trial court.
Affirmed.
HOBSON, J., and WILLIS, ROBERT, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nelson v. State, 490 So. 2d 32 (Fla. 1986)…dant of his rights under the sixth amendment confrontation clause. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Hall v. State, 381 So. 2d 683 (Fla. 1978); Broome v. State, 194 So. 2d 31 (Fla. 2d DCA 1967); Seely v. State, 191 So. 2d 78 (Fla. 2d DCA 1966), cert. denied, 196 So. 2d 925 (Fla.1967). Indeed, as this Court previously stated in Hall v. State: The fact that the defendants here were tried separately rather than jointly does not vitiate the constitutional infirmity. The cr…
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Broome v. State, 194 So. 2d 31 (Fla. 2d DCA 1967)…f the co-defendant’s confession. The parts of the confession to which a defendant assents can be admitted into evidence. Anthony v. State, 1902, 44 Fla. 1, 32 So. 818; Trimble v. State, Fla.App.1962, 143 So. 2d 331; and Seely v. State, Fla.App.1966, 191 So. 2d 78. The case of Blanco v. State, 1942, 150 Fla. 98, 7 So. 2d 333, is almost directly in point here. Blanco and his three co-defendants were all questioned in the same room. Blanco remained silent but the three co-defendants made oral confessions. Afte…
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Gorko v. State, 199 So. 2d 132 (Fla. 3d DCA 1967)…inal intent see: St. Giorge v. State, Fla. 1956, 92 So. 2d 612; Gilchrist v. State, Fla. App.1965, 177 So. 2d 777. As to resistance necessary to show lack of consent see: Gadsden v. State, 77 Fla. 627, 82 So. 50 (1919); Seely v. State, Fla.App.1966, 191 So. 2d 78. Affirmed.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Gadsden v. State, 77 Fla. 627 (Fla. 1919)
- Manning v. State, 93 So. 2d 716 (Fla. 1957)
- Mendenhall v. State, 71 Fla. 552 (Fla. 1916)
- Trimble v. State, 143 So. 2d 331 (Fla. 1st DCA 1962)