Alford v. State , 132 Fla. 624 ( 1938 )

The writ of error brings for review judgment of conviction of one Auzie Alford in the Circuit Court of Okaloosa County under the second count of an indictment in the following language:

"And the Grand Jurors aforesaid, upon their oaths aforesaid, do further present that W.D. Houston, on June 1st, 1937, at and in Okaloosa County, Florida, did then and there feloniously attempt to commit an offense prohibited by the laws of Florida, and in such attempt did then and there do a certain act toward the commission of the said offense, that is to say that he, the said W.D. Houston, with the felonious intent to have unlawful carnal intercourse with one Ethel Alford, an unmarried female, who was then and there under the age of eighteen years and of previous chaste character, did then and there in the furtherance of his the said W.D. Houston's said felonious attempt, take the said Ethel Arnold to a secluded spot and place and cause her to be placed in a position in which sexual intercourse could be had with her, the said Ethel Alford; and Auzie Alford and Mrs. Auzie Alford did then and there before the said felonious act by the said W.D. Houston, committed in form and manner aforesaid, feloniously assist, procure, counsel and aid the said W.D. Houston to do and commit said felony."

The verdict of the jury was as follows:

"We, the Jury, find the defendant, W.D. Houston, guilty as charged in the second count.

"We, the Jury, find the defendant, Auzie Alford, guilty as charged in the second count.

"We, the Jury, find the defendant, Mrs. Auzie Alford, not guilty.

"ALTON EDGE, Foreman."

The plaintiff in error poses four questions for our consideration, as follows:

"A. Can there be such a crime as attempt to have carnal knowledge of a female under the age of eighteen (18) years and of previous chaste character?

"B. Did the evidence in the case show that the principal, W.D. Houston, committed the act of attempt to have carnal knowledge of a female under the age of eighteen (18) and of previous chaste character?

"C. Was the evidence sufficient for a conviction of the plaintiff in error as accessory before the fact of the said offense?

"D. Could the trial court give a fine and alternative to the State Prison for three (3) years in such a case?"

The first question must be answered in the affirmative and against the contention of the plaintiff in error.

Section 5409 R.G.S., 7552 C.G.L., provides as follows:

"Any person who has unlawful carnal intercourse with any unmarried person, of previous chaste character, who at the time of such intercourse is under the age of eighteen years, shall be punished by imprisonment in the State penitentiary not more than ten years, or by fine not exceeding two thousand dollars, or both."

Section 5403 R.G.S., 7544 C.G.L., provides, in part, as follows:

"Whoever attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such an offense, but fails in the perpetration, or is intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:

"1. If the offense attempted to be committed is punishable with death, the person convicted to such attempt shall be punished by imprisonment in the State prison not exceeding ten years.

"2. If the offense attempted to be committed is punishable by imprisonment in the State prison for life, or for five years or more, the person convicted of such attempt shall be punished by imprisonment in the State prison not exceeding five years, or in the county jail not exceeding one year."

There is little, if any, difference between the acts necessary to constitute an attempt to have sexual intercourse with an unmarried female under eighteen years of age of previous chaste character and the acts necessary to constitute the offense of assault with intent to commit the same offense.

In the case of Phillips v. State, 93 Fla. 112, 111 So.2d 515, the plaintiff in error had been convicted of the offense of an assault with attempt to commit a felony, to-wit: "to have unlawful carnal intercourse with an unmarried female person of previous chaste character under eighteen years of age." In that case we said:

"There is found in the record substantial evidence that the accused, a young man twenty-two years of age, took the young girl, fourteen years of age, alleged to have been the subject of the assault, for a ride in his automobile in the night time, that he drove to a lonely spot, stopped his car, took her in his arms, fondled and kissed her, raised her skirts, put his hands on her legs and on her private parts and demanded that she have sexual intercourse with him, and that he tried then and there by the use of both force and persuasion to accomplish that purpose. The girl was under the age of consent and therefore to argue that accused was first trying to procure her consent to the sexual act can avail nothing. To have sexual intercourse with an unmarried female of previous chaste character under the age of eighteen years, is a felony under the laws of this State, and when a person takes liberties with such a female by indecently fondling her with the intent by such acts to then and there have sexual intercourse with her, he thereby violates the law of this State as charged in the instant information."

While the evidence in this case is conflicting, the proof of the attempt as found in the evidence given by several witnesses makes a stronger case than was made in the Phillips case. Therefore, we must hold that there was, as shown by the transcript of the record, adequate, legal evidence to prove the attempt charged to have been committed by the principal named in the indictment, W.D. Houston.

A reading of the record convinces us that there was sufficient evidence also to sustain a conviction against the plaintiff in error here as an accessory before the fact.

The fourth question must be answered in the negative because the statute, Sec. 5408 R.G.S., 7110 C.G.L., provides:

"Whoever aids in the commission of a felony, or as accessory thereto, before the fact, by counseling, hiring, or otherwise procuring such felony to be committed, shall be punished in the same manner prescribed for the punishment of the principal felon."

And Sec. 5403 R.G.S., 7544 C.G.L., provides that:

"The person convicted of such attempt shall be punished by imprisonment in the State prison not exceeding five years, or in the county jail not exceeding one year."

The sentence imposed in the instant case was:

"You, Auzie Alford, having been found guilty of the crime filed against you, the Court now adjudges you to be guilty. Therefore it is the judgment of the Court and the sentence of the law that you for your said offense do forfeit and pay to the State of Florida for the use of Okaloosa County the sum of ($500.00) Five Hundred Dollars and costs, or in default of payment thereof, that you do be confined in the State prison at hard labor for a period of three years."

The error in the judgment, however, is sufficient to require a reversal. That part of the judgment reading "do forfeit and pay to the State of Florida for the use of Okaloosa County the sum of ($500.00) Five Hundred Dollars and costs, or in default of payment thereof" is not authorized under the statute when coupled with sentence to State prison, so the judgment is reversed and the cause remanded for the imposition of a legal and valid judgment on the record as it otherwise stands.

It is, therefore, ordered and adjudged that the said judgment be so amended nunc pro tunc as of the date thereof and it being so amended do stand affirmed.

So ordered.

Affirmed.

WHITFIELD, TERRELL and BROWN, J.J., concur.

CHAPMAN, J., dissents.