MELVIN FARABEE, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Affirmed.
HOBSON and GRIMES, JJ., concur.
McNULTY, C. J., dissents with opinion.
McNULTY, Chief Judge
(dissenting).
I must respectfully dissent. The sole triable issue in this rape case was the question of consent on the part of the prosecutrix. While concededly the evidence, though conflicting, prima facie supports the jury’s finding of lack of lack of consent, nevertheless the unrefuted evidence of the highly questionable virtue and character of the prosecutrix, together with the admitted circumstances of the alleged rape (i. e., committed in the presence of several cheering participants in a raucous, all night beach party), raises a question in my mind as to its conclusiveness. In the interest of justice another jury ought weigh the sufficiency of the evidence bearing on the lack of consent to determine whether it is proof beyond and to the exclusion of a reasonable doubt. While this course has wisely in the past been guardedly taken,1 this appears to me to be one of those cases in which it is fully justified.
. See Lowe v. State (1944), 154 Fla. 730, 19 So. 2d 106; Garner v. State (1938), 134 Fla. 252, 183 So. 739; Fuller v. State (1926), 92 Fla. 873, 110 So. 528; Nims v. State (1915), 70 Fla. 530, 70 So. 565; Johnson v. State (Fla.App.2d, 1960), 118 So. 2d 806, second appeal (Fla.App.2d, 1962), 138 So. 2d 386.
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Citator
Cited By
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McILWAIN v. State, 402 So. 2d 1194 (Fla. 5th DCA 1981)…, Fla.Stat. (1979). . Hufham v. State, 400 So. 2d 133 (Fla. 5th DCA 1981); see State v. Melendez, 392 So. 2d 587 (Fla. 4th DCA 1981). . Ralston v. State, 350 So. 2d 791 (Fla. 3d DCA 1977), cert. denied, 364 So. 2d 890 (Fla.1978); Farabee v. State, 336 So. 2d 1281 (Fla. 2d DCA 1976), cert. denied, 345 So. 2d 422 (Fla.1977). . Cf. Hicks v. State, 362 So. 2d 730 (Fla. 3d DCA 1978), cert. denied, 370 So. 2d 461 (Fla.1979); Spencer v. State, 332 So. 2d 30 (Fla. 1st DCA 1976) (issue of degree of force under § 794…
Authorities Cited
- Fuller v. State, 92 Fla. 873 (Fla. 1926)
- Lowe v. State, 154 Fla. 730 (Fla. 1944)
- Nims v. State, 70 Fla. 530 (Fla. 1915)
- Leamon Johnson v. State, 118 So. 2d 806 (Fla. 2d DCA 1960)
- Milford Garner v. State, 134 Fla. 252 (Fla. 1938)
- Leamon Johnson v. State, 138 So. 2d 386 (Fla. 2d DCA 1962)