Dean v. State (133 Fla. 797, 1938)

Buford, J.

—-The opinion written by Mr. Chief Justice Ellis was written for a majority opinion and is agreed to except that we think there was ample substantive evidence if believed by the jury to support the verdict. If the statements made by the alleged victim as to what transpired were true the accused was clearly guilty of the offense charged. The judy indicated by its verdict that it believed those statements and the trial Judge approved the findings of fact in order denying new trial. The judgment should be affirmed.

So ordered.

Whitfield and Brown, J. J., concur.

Ellis, C. J., and Chapman, J., dissent.

Ellis, C. J.

(dissenting).—The plaintiff in error, Joe Dean, was indicted for an assault upon Elma Lane, a female person, with intent to commit the offense of rape. It was alleged that the offense was committed on July 23, 1935, in Pinellas County. The indictment was returned and filed in May, 1936, and the defendant was placed on trial on July 13, 1936, which resulted in a verdict of guilty, and a judgment of conviction and sentence followed; to that judgment a writ of error was taken.

An attack was made upon the indictment by motion in arrest of judgment. In view of the rule which this Court has followed in the case of Tuberson v. State, 26 Fla. 472, 7 South. Rep. 858; and Disney v. State, 72 Fla. 492, 73 South. Rep. 598, we hold that no error was committed in overruling the motion in arrest of judgment. See also Waldrop v. State, 99 Fla. 610, 126 South. Rep. 760.

Another attack made upon the judgment is that the evidence was insufficient to support the verdict. An examination of the evidence in this case leads one to the inescapable conclusion that the material elements of rape were not present in the transaction which occurred between these parties in the automobile on the night on which it was alleged the offense was committed.

It would neither be edifying nor interesting to the bar or the laity to discuss in detail the transactions which occurred between the two principal parties on the night in question. The conclusion seems to be inevitable that the woman in the case, who was about thirty-seven years of age, and was seated in an automobile with the accused when the alleged act was committed, ma