Jowers v. State

West, J.

Plaintiff in error wag. indicted on a charge of rape. The indictment alleges that he did “unlawfully ravish and carnally know and abuse a female child under the age of ten years.” The charge is predicated upon Section 5051, Revised General Statutes of Florida, 1920, Upon a trial a verdict was returned finding him guilty of an assault with intent to commit rape. Motions in arrest of judgment and for a new trial were denied and sentence was imposed. To review the judgment .imposing sentence this writ of error was taken.

Two questions are presented. The first raises the ques: tion of the sufficiency of the evidence tó sustain the' verdict. Nothing would be accomplished by a discussion of the evidence. The child alleged to have been assaulted, its mother and a physician, who examined the child, testified to the fact of the assault. Other witnesses testified to facts showing that an opportunity was afforded plaintiff in error to commit the offense. The credibility of the evidence was a question for the jury who saw and heard the witnesses. The verdict has the sanction of the trial judge. We cannot say the evidence is insufficient. On the contrary, it seems to be ample to sustain the verdict.

The other contention is that under the allegations of the indictment plaintiff in error could not be legally convicted of an assault with intent to commit the crime charged. This contention is without merit. The language employed is sufficiently comprehensive to include the offense of assault with intent to commit the crime of rape. In Schang v. State, 43 Fla. 561, 31 South. Rep. 346, this court, in considering a case based upon this statute,-said: “Our conclusions are that under our statutes the unlawful carnal knowledge and abuse of a female under the age of ten years is rape; that under an indictment in terms charging such carnal knowledge and abuse of such female child there may properly be a conviction of an assault with intent to' commit rape.”

The judgment is affirmed upon the authority of Schang v. State, supra.

Affirmed.

Taylor, Whitfield and Ellis, J. J., concur.

Browne, C. J., concurs on authority of Schang v. State, 43 Fla. 561, on doctrine of Stare decisis.