HOWARD B. McKEE v. STATE OF FLORIDA, 159 Fla. 794

TERRELL, J.: Appellant was tried and convicted on an indictment charging him with rape. The jury recommended mercy, motion for a new trial was denied and a sentence of life imprisonment at Lard labor in the State penitentiary, was imposed. This appeal is from that judgment. The primary question presented for our determination turns on the sufficiency of the evidence to support the verdict and judgment.

Appellant contends that the judgment should be reversed because the only direct evidence in support of the charge against him is that of the prosecutrix and that her testimony is incredible because she first reported to the police that defendant attempted to rape her, but five days later she changed her story and proclaimed for the first time that defendant had raped her. It is further contended that she refused to submit to a medical examination immediately after the assault and made no outcry or protest against the defendant at the time of "the alleged rape.

From the record it appears that the prosecutrix boarded a down town Miami bus shortly after midnight May 1, 1946, and proceeded to the corner of 27th Avenue and Coral Way, where she was discharged from the bus, about four blocks from her home. Defendant was a passenger on the bus at the same time and when it moved across the intersection, about sixty feet from where the prosecutrix was discharged, he arose from his seat to leave the bus and as he was leaving it, remarked to the driver, “I believe I will get some of that,” or words of similar import.

He stalked the prosecutrix for some distance in the direction of her home and struck her from the rear as he overtook her. He contends that he struck her only one time but she says, “he just run up from behind me and jerked me right backwards.

He didn’t say anything, and before I could know what was happening he had me bent down, and one hand was here and one over here, (indicating) and he was beating my face, and I was hollering as loud as I could and 'crying for help, and he kept saying “I will kill you,” and then he quit hitting me with his right hand, and took hold of my neck, and choked me to keep me from hollering, so he got me quieted down, where I couldn’t make a sound.” She asserts that she then submitted to intercourse with him because she was in fear of her life.

Defendant stuck to his story that he struck the prosecutrix but one time and that his motive was not rape but robbery. In addition to her verbal testimony, the prosecutrix refuted defendant’s story and supported hers with such physical evidence as bruises on her face and body, her left eye was about closed, the right side of her face was bruised, her jaw was swollen and her face was black and blue, she had a cut back of one ear and the other ear was bruised, her throat was swollen and her face was scratched. The discoloration on her face lasted two weeks.

One witness described her as “just beat up completely.” At the scene of the assault she lost a wrist watch, ear bobs and a flower from her hair, but these were recovered the next morning. The prosecutrix asserts positively that she cried for help as loud as she could and finally submitted to appellant’s demand because, she was in fear of her life. The fact of rape brands a woman with a mark that is extremely humiliating and impossible to efface and being so, she is not called on to look up a doctor and submit to an examination for the purpose of verifying her verbal testimony to the act.

The result of such an examination would be nothing more than cummulative evidence and the victim of such an assault is not called on to humiliate herself for that purpose. Neither should the fact that she did not do so militate against her. Likewise the fact that she is alleged to have told two different stories about the incident does not necessarily affect the probative value of her evidence. Her stories were not conflicting and she gave a perfectly logical explanation for the two versions.

Any woman of refined virtue would be abashed to announce that she had been raped and for that reason is not called on to simulate the marks incident to such a report. Even if her stories were in conflict, it was one for the jury to resolve and unless it is conclusively shown that they applied a wrong rule of law to it, this court is without power to interfere with their findings. Under our scheme of administering justice, the jury resolves factual conflicts, a function quite as important as any single function performed by the court.

They take an oath to perform that function no less solemn than that taken by the court to perform its function. When it is shown that they have performed that duty faithfully and honestly and reached a conclusion that squares with reason and their theory of the evidence, it takes more than mere difference in opinion as to what the evidence shows, for this court to reverse them. We find no basis whatever for reversal here, except a possible difference of opinion as to what the facts before the jury reveal. Every reasonable deduction from the evidence supports the jury’s conclusion.

When' the defendant jumped off the bus in pursuit of the prosecutrix and announced to the bus driver, “I believe I will get some of that” any normally sexed jury knows the lingo of the pine barrens, knows what such a declaration imports. A jury of eunuchs might not be so advised. When he follows up his assertion by slugging her into submission it was perfectly logical for a jury of reasonable men to return a verdict of guilty. There is no suggestion that the jury in this ease was influenced by any consideration whatever outside the evidence.

Much is made of the fact that the prosecutrix did not report the assault on her at once, but this, like other questions raised, was for the jury to resolve and what we have said is a complete answer to it. After all is said, the consuming thing before the jury was two conflicting stories about a very unfortunate incident. The jury believed the story of the prosecutrix, there is ample evidence to support it, and when this is the case we have so often said that we were powerless to disturb it, that it would now be trite to repeat it.

The trial court refused to disturb the finding of the jury, and for this court to do so, would amount to a substitution of our judgment for that of the jury, in an area where we would be little, if any, short of judicial meddlers. We have read the cases relied on by appellant but we do not think they are in point. We have read the charge of the court and we think it was free from error. We have also considered the contention of appellant that it was error for the trial court to discuss with the jury the eligibility of a convicted person for parole and to read

Section 947.16, Florida Statutes 1941, relating to parole to the jury during the trial, but we find no error in this contention. We are convinced that the evidence was ample to sustain the judgment and that it should be and is hereby affirmed. Affirmed. BUFORD, ADAMS and BARNS, JJ., concur. THOMAS, C. J., CHAPMAN and SEBRING, JJ., dissent.