the owner of premises is responsible to one coming thereon, by his invitation, for injury occasioned by their unsafe condition, and from a cause which could have been avoided by reasonable

care.

642 But this principle, like that governing the responsibility of an employer, has its limitations. The duty of the owner in such a case has relation to the object for which the right of entry is extended, and is limited to responsibility for the condition of that portion of the premises required for the purposes of the visit; it does not impose liability for the want of safety at a point without those limits, and where the injured party was neither invited nor expected to go: 1 Thompson on Negligence, c. 7, p. 308; Zoebisch v. Tarbell, 10 Allen, 385; 87 Am. Dec. 660; Murray v. McLean, 57 Ill. 378; Schmidt v. Bauer, 80 Cal. 565.

When the defendant owners permitted the plaintiff to go aboard the ship for a specific purpose, they did not give him the right, by implication, or otherwise, to roam at will over their vessel for his own purposes. They undertook that their decks should be reasonably safe where plaintiff was required by his employment to traverse them, but not elsewhere.

"We have found no support for any rule," says Mr. Thompson, in speaking of the rights of trespassers or mere licensees, "which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or their relations with the occupant": 1 Thompson on Negligence, 303. See, also, Redigan v. Boston etc. R. R. Co., 155 Mass. 44, 47; 31 Am. St. Rep. 520, and cases there cited.

The circumstances clearly distinguish this case from those relied upon by appellant. In all those cases it will be found that the injury was received while the party was engaged in the performance of his work, or in a place where he had a right at the time for the purposes of his employment to be.

Judgment affirmed.

Harrison, J., and Beatty, C. J., concurred.

Hearing in Bank denied.

NEGLIGENCE-NECESSITY OF FAILURE OF DUTY.-Negllgence is the failure to exercise such care, prudence, and forethought as duty, under the circumstances, requires should be given or exercised: Brotherton v. Manhattan Beach Imp. Co., 48 Neb. 563; 58 Am. St. Rep. 709, and note. An action for negligence does

not lie unless the defendant was under some duty, not performed, to the party injured at the time and place where the injury was inflicted: Daugherty v. Herzog, 145 Ind. 255; 57 Am. St. Rep. 204, and note.

MASTER AND SERVANT-DUTY TO FURNISH SAFE PLACE TO WORK-HOW LIMITED.-An employé in a coal mine left the room where he was at work and went to another, according to custom, to visit some other employés there at work, and while there the roof fell in by reason of the decay and insufficiency of the supports and killed him. His representatives were not allowed to recover for his death because, having left his proper working place and gone to a room to which no duty to his master, but rather his own pleasure, called him, he was in no better position than that of a licensee: Wright v. Rawson, 52 Iowa, 329; 35 Am. Rep. 275. Compare with the principal case, Parkinson Sugar Co. v. Riley, 50 Kan. 401; 34 Am. St. Rep. 123, and note; Broderick v. Detroit Union Depot Co., 56 Mich. 261; 56 Am. Rep. 382.

CASES

IN THE

SUPREME COURT

ОР

FLORIDA.

DOYLE v. STATE.

[39 FLORIDA, 155.]

RAPE-INSTRUCTION CONTAINING MATTER OF ARGUMENT.-It is not a rule of law that the jury must view rape as a most heinous offense calculated to create prejudice against the accused, nor that rape is, as a matter of law, an accusation easy to make and hard to be defended by the accused. This is matter of argument but not of instruction.

RAPE-COERCION WITHOUT FORCE.-If by an array of physical force, without laying hands on a woman, a man so overpowers her that she dare not resist, her consent is void and his carnal intercourse is rape.

RAPE.-INSTRUCTION as to the condition of prosecutrix at time of rape is a charge on the weight of evidence and erroneous. This is matter for the jury to determine from the evidence.

RAPE-CONVICTION ON UNCORROBORATED TESTIMONY OF PROSECUTRIX.-The jury may convict the accused of rape on the uncorroborated testimony of the prosecutrix.

RAPE-EVIDENCE OF PROSECUTRIX.-It is error to instruct the jury in prosecutions for rape that the evidence of the prosecutrix must be received with more than ordinary doubt and suspicion.

JURY TRIAL-SUFFICIENCY OF EVIDENCE.-The jury are the sole judges of the sufficiency of the testimony and the veracity of the witnesses, and unless there is evidence that the jury was improperly influenced, the court will not reverse the decision on the ground of insufficiency of evidence.

The plaintiff in error was convicted of rape. The prosecutrix testified that defendant, an utter stranger, on August 19, 1895, came to her house, and after some talk solicited her to sexual intercourse and she told him to go away; he offered her five dollars and she refused; that defendant then began cursing, drew a knife and threatened to kill her if she did not sub

mit; that she laid down on the bed and defendant cursing and threatening to kill her pulled up her dress and penetrated her; that defendant, when through, said he would kill her if she told. Prosecutrix recognized defendant though she had not seen him since the assault until he was arrested and brought before her the following December. The prosecutrix was not interrogated as to any resistance on her part; nor as to any complaints made after the occurrence, nor as to any other matters connected with the crime, or her conduct at the time of or after the commission. Defendant was arrested in December, 1895, and when arrested asked if he was wanted for something at Baldwin. Defendant testified that he was not in Baldwin in August, 1895; that he lived in Savannah, Georgia; that he never saw the prosecutrix until he was arrested and brought before her in December, 1895. Defendant exhibited his foot which had the big toe and the one next to it gone. He also exhibited scars on his face. Depositions of six parties were read for the defense, all of whom claimed to be able to identify defendant, and deposed that he was in Savannah, Georgia, on August 19, 1895, or about that time. Some deposed as to the absence of the toe, others as to the scars on the face. Two witnesses in rebuttal, testified that they had known defendant two or three years, and that they saw him in Baldwin on August 14, 1895. One witness had conversed with him on that day. The court refused the following instructions requested by the defendant: 1. The charge made against defendant is in its nature a most heinous one, and well calculated to create strong prejudice against the accused, and the attention of the jury is directed to the difficulty, growing out of the nature of the usual circumstances of the crime, in defending against the accusation of rape. Voluntary submission on the part of the woman, while she has power to resist, no matter how tardily given or how much force had theretofore been used, does not constitute rape. 2. Prosecutrix being in full possession of natural mental and physical power, and not terrified by threats, or in such a position that resistance would be useless, it must appear that she resisted to the full extent. of her ability; otherwise it is not rape. 3. Unless you are satisfied beyond any reasonable doubt that she did not, during any part of the act, yield her consent you must acquit. 4. I charge you that this is an accusation easy to make, and hard to be defended by the accused, though he be never so innocent, and hence the law is that you should receive with more than ordinary doubt and suspicion the evidence of the prosecutrix. 5.

I further charge you that if, upon considering the whole evidence, including the evidence contained in the depositions, there remains a reasonable doubt in your minds as to whether this prisoner was not only in Duval county at the time of the commission of this offense, but also that he forcibly and against the consent of the prosecutrix, carnally knew her, then you must acquit. 6. I warn you against conviction on the unsupported testimony of the prosecutrix. Unsupported testimony is

not sufficient to convict.

R. S. & P. D. Cockrell, for the plaintiff in error.

Wm. B. Lamar, attorney general, for the defendant in error.

160 CARTER, J. The trial court was justified in refusing the first as well as the fourth instruction, because the first sentence of each instruction announced matters of argument merely, and not principles of law. The court may, and should whenever necessary, in all criminal trials, caution the jury against convictions from prejudice or upon insufficient evidence; but it is not a rule of law that the jury must view the offense of rape as a most heinous one, or one well calculated to create strong prejudice against the accused; or that the attention of the jury be specially directed to the difficulty growing out of the usual circumstances of the crime in defending against rape; nor is it a rule of law that rape is an accusation easy to make, and hard to be defended by an accused, though he be never so innocent. In the case of Crump v. Commonwealth (Va., Dec. 5, 1895), 2 Fed. & St. Cr. Rep. 433, 37 S. E. Rep. 760, it is said that instructions of this nature are merely statements of the conclusions of the judicial mind from experience in the trial of this class of offenses rather than enunciations of principles of law, and that the oft-repeated observation of Lord Hale, included in the fourth instruction was entirely proper by way of argument to the jury, but not as an independent instruction of law from the court: People v. Barney, 114 Cal. 554.

The third instruction is also erroneous, because it requires a greater degree of resistance upon the part of a woman than the law and common sense demand where the offense is accompanied as in this case, with an exhibition of weapons and threats, calculated to 161 produce in the mind of the woman a reasonable fear of death or great bodily harm in case of resistance. Consent of the woman from fear of personal violence is void, and though a man lays no hands on a woman, yet if by an array of

AM. ST. REP.. VOL. LXIII-1: