RUBIN BOWDEN
v.
STATE OF FLORIDA
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The court held that the evidence did not support a conviction for assault with intent to commit rape, as the victim's cooperation and lack of proof of force against her will were not sufficiently established.
The appellant was convicted of assault with intent to commit rape after an indictment for rape. The victim was a thirteen-year-old female. The jury's …
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On indictment charging rape, accused was convicted of assault with intent to commit rape. From judgment of conviction, appeal has been perfected to this Court.
*716The facts as disclosed by the record can arouse no sympathy on behalf of the appellant. We are convinced by the record and, in fact, by the testimony of the appellant that he ravished and had carnal knowledge of a child of the age of thirteen years.
The record indicates, though it was alleged in the indictment, that the victim was an unmarried female of previous chaste character.
The verdict of the jury, in effect acquitting the accused of rape and finding him guilty of assault with intent to commit rape, though contrary to the overwhelming evidence, has foreclosed the question as to penetration in favor of the accused.
The record fails to establish that the act was accomplished by force and against the will of the victim. At most, the record shows that the victim protested, but that while protesting she cooperated materially in attaining the consummation of the criminal assault.
Therefore, the judgment must be reversed with directions that the cause go back to the lower court to be certified to the criminal court of record for further proceedings.
It will be recognized that when the judgment of reversal shall have been entered here the cause goes back to the lower court in the same status as it would have if it stood there on indictment charging assault with intent to commit rape, and with the former verdict and judgment standing as a bar to the prosecution of any higher offense by reason of the acts here involved. Such verdict and judgment will not bar prosecution for the crime of assault with intent to have sexual intercourse with an unmarried female under eighteen years of age of previous chaste character.
Reversed and remanded.
So ordered.
TERRELL, THOMAS, ADAMS, and SEBRING, JJ., concur.
BROWN and CHAPMAN, JJ., dissent.
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State v. Rubin Bowden, 154 Fla. 511 (Fla. 1944)…order under Section 924.07 Florida Statutes, 1941, which authorizes an appeal by the State from an order quashing an indictment or information or any count thereof. The question is whether under the decision of this Court in Bowden v. State (Fla.) 12 So. 2d 887, the judgment of acquittal on the charge of rape, entered in the former trial, now stands as a bar to a prosecution either for unlawful carnal intercourse with an unmarried female of previous chaste character under the age of eighteen years, or for…1 / 2
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Jimenez v. State, 158 Fla. 719 (Fla. 1947)…ot render it insufficient to do so and the prisoner is in nowise hurt by that excess of its probative force which the jury has ignored.” See also Roberts v. State, 94 Fla. 149, 113 So. 726, Prevatt v. State, 82 Fla. 284, 89 So. 807, Bowden v. State, 152 Fla. 715, 12 So. (2nd), 887, and 42 Corpus Juris Secundum 1327, Indictments and Informations, Sec. 299: “The general rule is that accused may be convicted of a lesser degree of an offense, or a lesser included offense, even though the proof shows that he was…
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Boyette v. State of Fla. Prof'l Practices Council, 346 So. 2d 598 (Fla. 1st DCA 1977)…ed in O’Bryan: “The offense of forcible rape is never established where the evidence presented by the state fails to show that the act was accomplished by force and against the will of the victim, but only shows that she protested. Bowden v. State, 152 Fla. 715, 12 So. 2d 887 (1943).” 324 So. 2d at 715. In the recent opinion of Tibbs v. State, 337 So. 2d 788 (Fla.1976), the Supreme Court reversed a conviction for rape and murder even though the victim of the rape identified Tibbs as the perpetrator. The c…
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