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physical force, he so overpowers her that she dares not resist, his carnal intercourse with her is rape: 2 Bishop's Criminal Law, sec. 1125; Rice v. State, 35 Fla. 236; 48 Am. St. Rep. 245; Clark's Criminal Law, 188; Felton v. State, 139 Ind. 531. This instruction, utterly ignored the rule dispensing with resistance under such circumstances, and although the principles therein stated might be applicable to a case where no exhibition of weapons and threats to use them were shown in evidence, they are not correct when applied to the facts of this case, and the court properly refuses to give them: Felton v. State, 139 Ind. 531; Huston v. People, 121 Ill. 497.

The second instruction was also erroneous because it was a charge upon the weight of the evidence. By it the jury were told that prosecutrix was at the time of the alleged rape in possession of her natural mental and physical power, and not terrified by threats, or in such a position that resistance would be useless. All these were matters for the jury to determine from the evidence, and the court by giving the instruction would have taken these questions from the jury and confined the jury to the sole question whether prosecutrix resisted to the full extent of her ability: Giles v. State, 83 Ga. 367.

The fourth and sixth instructions were properly refused. Both of them, when applied to the facts of 162 this case, told the jury that, as a matter of law, the defendant could not be convicted upon the uncorroborated testimony of the prosecutrix. In several states such a rule is expressly enacted by statute, and in one or two others the courts have held this to be the law independent of statute. But the weight of authority, and better reason in the absence of statute, is that there is no law limiting the powers of the jury to convict on the uncorroborated testimony of the prosecutrix: 2 Bishop's Criminal Procedure, sec. 968; Boddie v. State, 52 Ala. 395; Barnett v. State, 83 Ala. 40; Monroe v. State, 71 Miss. 196.

The fourth instruction stated the law to be that a jury should receive with more than ordinary doubt and suspicion the evidence of the prosecutrix in prosecutions for rape. As without the testimony of the prosecutrix no conviction could have been had in this case, and the court charged the jury that they must give defendant the benefit of all reasonable doubts, it is apparent that had the court given this instruction, the whole controversy would have been resolved into this proposition; the defendant is entitled to the benefit of all reasonable doubts: his guilt is proven only by the prosecutrix; her testimony must be re

ceived with extraordinary doubt and suspicion, therefore defendant is entitled to a verdict. If in any case it is proper for the court to instruct the jury that they should scrutinize the testimony of the prosecutrix with caution, no authority can be found to sustain the proposition that such testimony must, as a matter of law, be received with more than ordinary doubt and suspicion: Monroe v. State, 71 Miss. 196; 2 Bishop's Criminal Procedure, sec. 968; 3 Greenleaf 163 on Evidence, sec. 212. The judge has no power to instruct the jury as to the weight of evidence, but only as to the rule: Williams v. Dickenson, 28 Fla. 90.

The fifth instruction was fully covered by the general charge of the court, and was therefore properly refused.

We are asked to reverse the judgment in this case upon the ground that the evidence is insufficient to sustain the verdict. In Sherman v. State, 17 Fla. 888, it is said: "We do not think we ought to interpose our judgment, even if we differed with the jury in their conclusions. The rule is otherwise unless we can discover some evidence that the jury was improperly influenced. As to the sufficiency of this testimony and the veracity of the witnesses, the jury were the sole judges," and this rule is binding upon us. The court below charged the jury very favorably for the accused. The jury were instructed, among other things, that the presumption of innocence accompanied the defendant through each step of the trial as to each material allegation, and the presumption obtained until overcome by evidence establishing guilt beyond a reasonable doubt; that the evidence must convince the minds of the jury beyond reasonable doubt of the identity of the prisoner with the person who it was claimed committed the crime, and that the prisoner did against the will of the prosecutrix, and by force, have carnal knowledge of her person, or by threats and fear of death or great bodily harm, overcame any resistance upon her part, and that a reasonable doubt as to the identity of the prisoner, or on the question of force, or its equivalent, fear of bodily harm, or death or duress, would entitle the prisoner to an acquittal. 164 No exception was taken to any portion of the charge or any ruling upon evidence. The judge who presided at the trial, not only approved the verdict by refusing a new trial, but imposed the heaviest penalty known to the law upon the defendant, although the statute left it discretionary with him to impose a lighter sentence. The jury whose province it was to pass upon the testimony thought the proof so clear that they failed to embody

a recommendation to mercy in their verdict. While the testimony of the prosecutrix might have been more lengthy in details, and therefore more satisfactory to those minds which shudder at taking human life for a crime sometimes so hard to defend against as rape, yet the testimony of this woman, who is not shown to be of bad character for veracity or chastity, and who was an utter stranger to defendant, and therefore not apt to be influenced by motives of animosity toward him, seems to have been given in a spirit of truth and sincerity, and we are not justified in saying it is untrue, when twelve jurors, whose province it was to pass upon it, have said it was credible, and when their verdict has received the sanction and approval of the judge who presided at the trial.

The judgment is, therefore, affirmed.

RAPE-FORCE NECESSARY.-Though a man lays no hands on a woman, yet if by an array of physical force he so overpowers her that she dares not resist, his carnal intercourse with her is rape: Rice v. State, 35 Fla. 236; 48 Am. St. Rep. 245, and note. Compare Whittaker v. State, 50 Wis. 518, 36 Am. Rep. 856, holding that such intercourse may not be rape.

RAPE UNCORROBORATED TESTIMONY OF PROSECUTRIX.-The rule requiring the testimony of an accomplice to be corroborated does not apply in a prosecution for the crime of carnally abusing a female person under the age of consent: Bond v. State, 63 Ark. 504; 58 Am. St. Rep. 129. See State v. Wilcox, 111 Mo. 569; 33 Am. St. Rep. 551. For a general treatment of rape, see monographic note to Smith v. State, 80 Am. Dec. 361-375.

RAPE-INSTRUCTIONS.-On a trial for rape, where the evidence conflicts as to the amount of resistance offered and force used, the prejudice likely to be aroused against the defendant by the heinous nature of the charge, and the difficulty in defending against it, should be pointed out to the jury: Reynolds v. State, 27 Neb. 90; 20 Am. St. Rep. 659.

APPEAL-SUFFICIENCY OF EVIDENCE.-If there is sufficient conflict in the evidence to put the determination of the issue within the province of the jury, the verdict cannot be disturbed on appeal on the ground of the insufficiency of the evidence to sustain it: Warner v. Southern Pac. Co., 113 Cal. 105; 54 Am. St. Rep. 327, and note; unless the conclusion of the jury is clearly wrong: Atkins ▼. Field, 89 Me. 281; 56 Am. St. Rep. 424, and note.

BRANDIES V. PERRY.

[39 FLORIDA, 172.]

HOMESTEAD-LAND APART FROM THE HOME TRACT. The head of a family cannot hold as a part of his homestead a detached tract of land used and cultivated as a part of the home farm, though both tracts do not in quantity exceed the limit allowable for a homestead.

Appellant, through sheriff, levied execution on about seventyfive acres of land, belonging to appellee and claimed by appellee

as part of his homestead and advertised the same for sale. Appellee was the head of a family residing on a four acre lot about four hundred yards from the above mentioned seventy-five acres and separated from them by other tracts of land not owned nor occupied by appellee. The said tract of seventy-five acres was used and cultivated as part of the homestead and both tracts did not exceed the constitutional limit as to quantity. Appellee filed a bill in equity praying that the land levied upon be set apart as a part of appellee's homestead, and for a temporary and permanent injunction against the proposed sale. A temporary injunction was granted. Appellant moved the dissolution of the injunction and the dismissal of the bill for want of equity. The court refused the motion and from this order appellant appealed.

Horatio Davis, for the appellant.

174 CARTER, J. The bill fails to show whether the two tracts of land mentioned, or either of them, are located within the limits of an incorporated town, but assuming that they are not, the question arises, can the head of a family residing in this state claim as a part of his homestead a detached tract of land, used and cultivated as a part 175 of the home farm, where both tracts do not exceed in the aggregate the limit of one hundred and sixty acres. Mr. Thompson says the weight of authority is against such claim: Thompson on Homesteads and Exemptions, sec. 145. See, also, Linn County Bank v. Hopkins, 47 Kan. 580; 27 Am. St. Rep. 309; McCrosky v. Walker, 55 Ark. 303; Waples on Homestead and Exemption, 153. It is apparent, however, that the question must largely depend upon the language of the statute or constitution giving the right of homestead exemption, and this language varies in the different states. The right is given in this state by section 1, article 10, constitution of 1885, which, in so far as it applies to homesteads outside of incorporated cities or towns, provides as follows: "A homestead to the extent of one hundred and sixty acres of land, .... owned by the head of a family residing in this state, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists." This language is practically the same as used in the constitution of 1868; and it had been several times construed by this court prior to its incorporation into the present constitution of 1885. Thus, in

Baker v. State, 17 Fla. 406, it was held that the actual ownership of real estate and its occupation by the head of the family and his family, impressed it with the homestead character. In Solary v. Hewlett, 18 Fla. 756, and Drucker v. Rosenstein, 19 Fla. 191, it was held that actual occupation of real estate as a home of the family was necessary to constitute such land a homestead, exempt from forced sale under process against 176 the head of such family. In the case of Oliver v. Snowden, 18 Fla. 823, 43 Am. Rep. 338, it was held that a party residing in an incorporated town or city with his family, and owning land several miles from the town, cannot claim the latter as exempt from forced sale as a homestead, it having never been occupied by him as a residence. In that case the question here involved, viz., whether two separate tracts of land outside of a city or town, may be treated as a homestead, the residence being upon one of them, and the other used as a part of the same farm, was stated, but not decided. It was there held, however, that the homestead meant by our constitution was the home place; the place where the home is; the house and adjoining land where the head of the family dwells; the home farm; the land where is situated the dwelling of the owner and his family. It was therein stated that "if the homestead, the place of residence of the debtor and his family, is in the town or city, the claim of exemption of rural lands cannot be allowed. It is only the 'place of the home' of the debtor and family that can be exempt from sale for debts." From this definition of a homestead, it is evident that the framers of our constitution had in mind, not an exemption of a given quantity of land for the benefit of a debtor, but, the protection from forced sale of the family home for the benefit of the debtor and his family. This view is emphasized by the language, "a homestead, to the extent of one hundred and sixty acres of land," meaning a family home place to the limit, size, or bulk of one hundred and sixty acres. This being the plain meaning of the language used, it is clear that a separate tract of land never occupied by the family and its head as a home cannot be exempt from forced sale, unless it can be 177 inferred that by reason of its use as a part of the same farm with the actual home place, it becomes a part thereof for homestead purposes. There is no language in the constitution to warrant such an inference. We said in McDougall v. Meginniss, 21 Fla. 362, 369: "When a party resides on the land as a homestead, and the law is silent as to how much of said land, other than that occupied by his house, he shall use

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