Opinion
November 20, 1951.
Appeal from the Circuit Court, Walton County, D. Stuart Gillis, J.
Thos. D. Beasley, De Funiak Spring, for appellant.
Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen., for appellee.
In this case an indictment was returned against the defendant containing two counts. The first count charged the statutory offense of rape, and the second count charged the statutory offense of having sexual intercourse with an unmarried female under 18 years of age, and of previous chaste character. In due course the case came on for trial and the jury returned the following verdict: "We, the Jury, find the defendant guilty of an assault and attempt to commit rape." The effect of the verdict was to find the defendant not guilty of the statutory offenses as charged.
It is the contention of the appellant that the above quoted verdict is not in accordance with the charges of the Court. The Court charged the jury, "If you should find the defendant guilty of an assault with intent to commit rape, the form of your verdict should be `We, the Jury, find the defendant, guilty of assault with intent to rape'." The jury was composed of laymen and in framing their verdict used the word "and" instead of "with", and the word "attempt" instead of "intent". In the case of Washington v. State, 55 Fla. 194, 46 So. 417, this Court approved the doctrine that a verdict is sufficient if it is so certain that the Court can give judgment upon it. In the case of Bunch v. State, 58 Fla. 9, 50 So. 534, this Court settled the question that for the purpose of a similar verdict the words "attempt" and "intent" were synonymous. Under the authorities above cited, we also hold that for the purpose of the verdict in question the words "with intent to rape" and "and attempt to commit rape" are synonymous. This case was purely a jury question. The jury could have under the evidence found the defendant guilty as charged in the indictment, or it could have given the defendant the benefit of any doubts and resolved conflicting evidence in favor of the defendant and found him guilty of a lesser offense, which it did in this case.
The evidence was nauseating and no good purpose could be served by any further discussion of it. It is sufficient to say that we have examined the evidence carefully and all of the assignments of error, and find no reversible error in the record.
Affirmed.
SEBRING, C.J., and CHAPMAN and ROBERTS, JJ., concur.