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Attorney(S)

John M. Coe, for appellant. J. Tom Watson, Attorney General, and Woodrow M. Melvin, Assistant Attorney General, for appellee.

Judges

Elwyn Thomas

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Smart Summary

Earl Simmons v. State of Florida — Supreme Court of Florida (Nov. 13, 1942)

Factual and Procedural Background

The appellant, Earl Simmons, was tried in the criminal court of record for Escambia County on an information with two counts: (1) assault with intent to commit rape; and (2) attempting to have carnal intercourse with an unmarried female under eighteen years of age and of previous chaste character, the attempt alleged to consist of an assault. The jury found the appellant guilty as charged on both counts. The matter came to the Supreme Court of Florida on appeal from the trial court's judgment and sentences (ten years on the first count and five years on the second, to run concurrently). The opinion confines its discussion primarily to legal questions arising from the trial and sentencing rather than reciting the detailed factual testimony, although the court states there was abundant evidence to establish commission of both offenses.

Legal Issues Presented

Whether an objection to a jury instruction as to the defendant's intention to commit rape may be considered on appeal when the objection was first announced in the motion for new trial rather than before the jury retired.
Whether, in an attempted statutory offense (attempt to have carnal intercourse with an unmarried female under eighteen of previous chaste character), the State was required to prove the defendant had specific knowledge or intent regarding the victim's chastity or age, or whether proof of an assault in furtherance of an intent to have carnal knowledge sufficed.
Whether the sentence imposed on both counts (concurrent sentences of ten and five years) was proper where the counts related to different aspects of the same criminal transaction, and whether the court should have imposed a single sentence for the greater offense rather than concurrent sentences.

Arguments of the Parties

Appellant's Arguments

The appellant contended that during the course of the assault he discovered the victim's virginity and then desisted from further attempts to ravish her; he requested a jury instruction that such a fact should be considered in determining whether he had the requisite intent to have unlawful carnal intercourse with a female of previous chaste character at the time of the assault (attempt).
Implicit in that request was the contention that knowledge gained during the assault about the victim's chastity would negate the specific intent required for conviction under the second count.

Appellee's Arguments

The opinion does not contain a detailed account of the appellee's (State's) legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Commonwealth v. Murphy, 165 Mass. 66, 42 N.E. 504	That certain crimes may be punished without proof that the defendant understands the facts that give character to his act; public-policy crimes may dispense with proof of understanding or specific intent.	The Court cited this authority to support the general principle that proof of specific intent is not always required where the Legislature has made the act itself the crime on public-policy grounds.
State ex rel. Lanz v. Dowling, 92 Fla. 848, 110 So. 522	Support for the proposition that proof of intent is not indispensable for certain statutory offenses.	The decision was cited as a Florida authority consistent with the principle that intent may be dispensed with for particular crimes created by statute.
Mills v. State, 58 Fla. 74, 51 So. 278	The Legislature may dispense with the necessity of criminal intent; the law may make the act the crime and infer criminal intent from the act itself.	The Court relied on Mills to conclude that, for the basic statutory offense addressed, intent need not be separately proven because the statute is silent as to specific intent and public policy infers intent from the prohibited act.
Smith v. State, 71 Fla. 639, 71 So. 915	Reinforcement of the principle in Mills that certain offenses do not require proof of specific mental intent where statute is silent and the act itself is made criminal.	Used to bolster the conclusion that establishing the statutory elements (celibacy, intercourse, age, former chastity) would suffice to imply the requisite criminal intent for the basic offense.
Additional authorities cited (treatises used in analysis): 15 Am. Jur., Wharton's Criminal Law, 22 R.C.L.	Support for the proposition that ignorance or mistake as to the victim's age or chastity is no excuse and that intent may be implied from the act.	The Court cited these treatises in support of its statutory interpretation and to explain that the State was not required to prove specific knowledge of the victim's chastity or age for the basic offense, and by analogy for the attempt.

Court's Reasoning and Analysis

The Court's analysis proceeded in several discrete steps based on the record and the statutory framework:

Preliminary procedural point — jury instruction objection: The Court declined to consider the appellant's challenge to a jury instruction concerning the defendant's intent to commit rape because no objection was made until the motion for a new trial. The Court cited the Criminal Procedure Act (Section 215; Section 918.10, Fla. Stat. 1941) requiring objections to instructions be made before the jury retires.
Nature of the basic statutory offense — mens rea: The Court explained that the basic offense (statute now codified as Section 794.05, Fla. Stat. 1941; previously Section 7552, C.G.L., 1927) criminalizes intercourse with an unmarried female under a certain age who has had no prior sexual experience, and that the statute is silent as to specific intent. Relying on precedent (Mills, Smith, Murphy, and State ex rel. Lanz v. Dowling) and treatises, the Court concluded that the Legislature may dispense with a specific intent requirement; the law can make the act the crime and infer intent from the act itself. Thus, for the completed offense, the State need only prove the statutory elements (celibacy, intercourse, age, former chastity), and ignorance of those facts is not a defense.
Application to the attempted offense: The Court distinguished the attempt statute (Section 7544, C.G.L., 1927; Section 776.04, Fla. Stat. 1941), noting the gravamen is the attempt accompanied by an overt act toward commission of the offense. Because the overt act in this case was an assault, the State had to prove that the assault was made in an effort to have carnal knowledge of the prosecuting witness. However, the Court held the State was not required to prove any further specific intent (such as an intent to have intercourse specifically with a person known to be chaste and under eighteen); if the requisite conditions actually existed when the assault was made, that sufficed.
Appellant's requested instruction and factual contention: The appellant argued that because he discovered during the assault that the victim was a virgin and desisted, the jury should consider that in assessing his intent. The Court rejected the argument: lack of knowledge of the victim's chastity (or discovery of it mid-assault) did not negate the liability because the statute does not condition conviction on the defendant's knowledge of those characteristics; only that the assault was committed in furtherance of an effort to have carnal knowledge.
Sentencing issue — concurrent sentences for the same transaction: The Court recognized two lines of authority. One holds that where counts present different aspects of the same criminal transaction, only one punishment should be imposed (for the higher-graded count). The other permits concurrent sentences on each count (effectively one punishment). The trial court imposed concurrent sentences (following the minority view). The Supreme Court expressed that, due to the overwhelming weight of contrary authority, it would have been proper to impose a sentence only for the greater offense charged in count one. The Court further reasoned that statutory language allowing concurrent service (Section 261, Criminal Procedure Act; Section 921.16, Fla. Stat. 1941) should not apply where counts are different aspects of a single transaction because otherwise a court could artificially stack sentences to exceed the maximum permissible for the more serious offense.
Disposition decision on sentencing: Balancing principles of uniformity and the statutory prohibition against reversing without injury to substantial rights (Section 309, Criminal Procedure Act; Section 824.33, Fla. Stat. 1941), and noting the practical equivalence of concurrent sentences with a single sentence for the greater offense, the Court affirmed the conviction and sentence on the first count but remanded with instructions to set aside the sentence on the second count to promote uniformity.

Holding and Implications

Holding:

The judgment for the offense charged in the first count (assault with intent to commit rape) is AFFIRMED, and the cause is remanded with instructions that the sentence imposed for the crime charged in the second count (attempting to have carnal intercourse with an unmarried female under eighteen of previous chaste character) be set aside.

Implications:

The Court held that for the basic statutory offense the State need not prove a defendant's specific knowledge or intent regarding the victim's chastity or age because the statute is silent as to specific intent and intent may be implied from the act; analogously, in an attempt prosecution where the overt act is an assault, the State must prove the assault was made in an effort to have carnal knowledge, but need not prove additional specific intent about the victim's age or chastity.
As to sentencing in cases where multiple counts reflect different aspects of a single criminal transaction, the Court endorsed (for purposes of this case and uniformity) the principle that a single sentence for the greater offense is appropriate rather than separate concurrent sentences on each count; accordingly, the sentence on the lesser, second count was ordered set aside. The conviction on the second count was not reversed; only the second count's sentence was vacated.
The Court's disposition emphasized direct relief to the parties (affirmance of the primary conviction and remand to set aside the secondary sentence) and sought uniform application of sentencing principles in similar cases.

Concurrence: Chief Justice Brown and Justices Whitfield, Terrell, Buford, Chapman and Adams concurred.

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EARL SIMMONS v. STATE OF FLORIDA

THOMAS, J.:

The appellant was tried in the criminal court of record on an information charging him, in the first count, with assault with intent to commit rape and, in the second count, with attempting to have carnal intercourse with an unmarried female under the age of eighteen years and of previous chaste character. It was charged in the latter that the attempt consisted of an assault upon her. Thus, the state relied on the evidence of an assault to meet the requirements of the statute, 7544 C.G.L., 1927 (Section 776.04, Florida Statutes, 1941), that where an attempt to commit an offense is alleged it must be shown that the defendant "does [an] act toward the commission" of the offense attempted. The jury found the appellant guilty as charged on first and second counts of the information."

From a perusal of the report of the testimony we are convinced that there was an abundance of evidence to establish the commission by the appellant of both offenses. We will not undertake to elaborate by giving the details of the sordid affair but will confine our discussion to the points of law involved. It was established that the prosecuting witness was unmarried so we will not again refer to her celibacy.

In one of the questions there is presented for our consideration the correctness of a charge given to the jury relative to the defendant's intention to commit rape when he made the assault, but we think that we are not required to consider the matter because it does not appear that any objection was announced to the challenged instruction until the presentation of the motion for new trial. The giving or refusal of instructions may not be assigned as error unless the objection is raised before the jury retires. Section 215, Criminal Procedure Act (Section 918.10, Florida Statutes, 1941).

The remaining two questions pertain to an instruction requested by the defendant apropos the second count and to the correctness of the sentence eventually imposed. We will treat of them in that order.

It is appellant's construction of the evidence that in the course of the assault he discovered the virginity of his victim and desisted from any further attempts to ravish her. It is our conviction, based on the testimony, that he did not abandon his attack out of any consideration for her but because he was defeated by her resistance. He requested the court to charge the jury that if they found his contention correct they should consider "such fact" in determining whether he had "the requisite intent to have unlawful carnal intercourse with such female of previous chaste character at the time of the commission of the assault [attempt]." The fallacy of this position is that it presupposes that an intent is an element of the basic offense denounced by the statute, that is, intercourse with an unmarried female under a certain age who has had no prior sexual experience.

This felony falls within the category of crimes "in which, on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act," Commonwealth v. Murphy, 165 Mass. 66, 42 N.E. 504, and proof of an intent is not indispensable to conviction. State ex rel. Lanz. v. Dowling, 92 Fla. 848, 110 So. 522. If the defendant had had sexual intercourse with the prosecuting witness, she being at the time under eighteen years of age and of previous chastity, even without any assault upon her, it would not have been a part of the state's burden to prove any intent, (See 15 Am. Jur., Criminal Law, page 9) and ignorance or mistake on the part of the defendant as to her age would have been no excuse. Volume I, Wharton's Criminal Law, 12th Ed., page 961; 22 R.C.L., page 1193. By the same token lack of knowledge of previous chastity would have been of no avail.

The statute, denouncing the basic offense (Section 7552, C.G.L., 1927, now Section 794.05, Florida Statutes, 1941) is silent as to the requirement of any specific intent and is not unusual in this respect. In the case of Mills v. State, 58 Fla. 74, 51 So. 278, it was said by this court that "while all common-law crimes consist of two elements — the criminal act or omission, and the mental element, commonly called criminal intent, it is within the power of the Legislature to dispense with the necessity for a criminal intent, and to punish particular acts without regard to the mental attitude of the doer, this because of the difficulty of proving a criminal intent in some cases, or, for other reasons, public policy may require it." Then follows this language which is particularly applicable to the instant case: "The law makes the act the crime, and infers a criminal intent from the act inself." Of the same import is the case of Smith v. State, 71 Fla. 639, 71 So. 915. Applying this principle to a violation of the statute with which we are dealing we find the conclusion unavoidable that it would be necessary only that the state prove the celibacy, intercourse, the age and the former chastity. If these were established by testimony beyond a reasonable doubt the intent to transgress would be implied and the conviction justified.

In the present case, as we have stated at the outset, the defendant was charged under Section 7544, supra, with attempting to commit the offense prohibited by law and doing an act toward the consummation of the crime. It will be seen that the gravamen of the offense is the attempt to perpetrate it accompanied by an act in furtherance of it. Inasmuch as the overt act consisted of an assault we think that it was incumbent upon the state to show that the defendant made the assault in an effort to have carnal knowledge of the prosecuting witness. It was not the state's burden to go farther in the proof of any intent. The statute was obviously enacted for the purpose of protecting the virginity of young maidens and "the precise thing intended to be discouraged, and punished if committed, is sexual intercourse with them." 22 R.C.L. page 1173. There could be no question in the mind of any one reading the record that there was abundant evidence of an assault in this case. It is well established, too, that there was a purpose on the part of the assaulter to have sexual intercourse with the prosecutrix. When such proof is present in a case of this kind we think there is no added burden on the state to show that the defendant had the specific purpose of intercourse with a person of previous chaste character and under the age of eighteen years. In other words, it is our view that if these elements may be implied with reference to the basic offense they need not be proven in an attmpt to commit that offense.

The argument of the appellant that in the course of the nefarious enterprise he gained information that his victim was chaste is without force. As we have said it is unimportant that the defendant may have been ignorant of her chastity or the lack of it at the time of the assault. Although there must have been at the time a purpose to accomplish the intercourse it was not necessary for the state to prove that the perpetrator intended his victim to be chaste and intended her to be under a certain age. If, in fact, it developed that these conditions obtained at the time he made the assault that is sufficient.

The last proposition facing us is the propriety of a judgment entered on the verdict we have quoted imposing a penalty of ten years on the first count and five years on the second, the sentences to run concurrently. There seem to be two classes of decisions on this subject. One of them holds to the principle that there should be one punishment where, as here, the various counts of the information presented different aspects of the same criminal transaction and that the court should impose a sentence on the count which charges the higher grade or degree of the offense. Another adheres to the rule that there may be a sentence on each count to run concurrently, the practical effect being the infliction of but one punishment. 24 C.J.S. Criminal Law, Section 1567, page 40. The trial judge followed the minority view. Because of the overwhelming weight of authority to the contrary we think it would have been proper for him to have imposed a sentence for the greater offense charged in count one of the information.

We are aware of the provision in Section 261, Criminal Procedure Act (Section 921.16, Florida Statutes, 1941, that a defendant "convicted of two or more offenses charged in the same indictment or information . . ." may be allowed to serve the terms of imprisonment concurrently "unless the court expressly directs that they or some of them be served consecutively." We are of the opinion that this law does not apply where, as here, the counts present different aspects of a single criminal transaction as distinguished from counts, in an indictment, charging kindred crimes. If the above provision were applicable in cases like the present one it would be possible for the court to impose a sentence of ten years on the first count and five years on the second count and to direct them to be served consecutively, thus inflicting a punishment of fifteen years imprisonment although but ten years could be imposed for the commission of the more serious crime charged in the first count of the information.

We are conscious, too, of the inhibition in Section 309, Criminal Procedure Act (Section 824.33, Florida Statutes, 1941), against the reversal of a judgment unless the substantial rights of the appellant have been injuriously affected. As has been suggested, the practical effect of two sentences running concurrently and one sentence for the higher crime would be similar; however, in the interest of uniformity, this being the first time this point has been presented, it is our order that the judgment for assault with intent to commit rape, as charged in the first count of the information, be affirmed, but that the cause be remanded with instructions that the sentence for the crime charged in the second count be set aside.

BROWN, C. J., WHITFIELD, TERRELL, BUFORD, CHAPMAN and ADAMS, JJ., concur.

SIMMONS v. STATE