Gadsden v. State (77 Fla. 627, 1919)

West J.

— The plaintif in error, referred to herein as the defendant, was indicted in the Circuit Court of Osceola County upon a charge of assault with intent to rape. Upon a trial of said charge he was* convicted and sentenced to a term of two years at hard labor in the State Prison. From this judgment writ of error was taken.

The questions raised are presented upon the assignment of error challenging the correctness of the order of the trial court denying defendant’s motion for a new trial.

The first contention is that the verdict is contrary to the law and to the evidence. The person alleged to have been asaulted, a girl thirteen years of age, testified directly and positively to all the facts essential and necessary to constitute the offense. In many respects her evidence was corroborated by the evidence of other witnesses- The identity of the defendant, and that he was present at the time and place of the commission of the alleged offense, is admitted. The defendant denies having committed the offense, but the jury whose province it was to pass upon the questions of the credibility of the witnesses, and the weight of the evidence accepted the State’s theory and found him guilty as charged. The trial Judge refused to set the verdict aside. There is ample -competent evidence in the record of all the facts legally essential to support the verdict and we will not disturb it. Wallace v. State, 76 Fla. 175, 79 South. Rep. 634; Messer. v. State, 75 Fla. 619, 78 South. Rep. 680; McCoy v. State, 75 Fla. 294, 78 South. Rep. 168; Herndon v. State, 73 Fla. 451, 74 South. Rep. 511.

The contention is also made that the trial court erred in refusing to give instructions requested on behalf of the defendant, to the effect that if the person alleged to have been assaulted, although first offering resistance, later submitted and did not use physical force tq resist the assault, and was not overcome by fear, the defendant should be found not guilty. It is not necessary that we pass upon this question because there is no proper basis in the evidence for the requested instructions. There is no evidence to the effect that the girl alleged to have been assaulted at first resisted the assault, but later and before it was consummated consented. On the contrary, she testified that she resisted until she was released by the defendant; that she made no outcry because she was frightened, the defendant having threatened to kill her if she did, and that immediately after being released by him she ran out of the house and told the first person she met (