
    Albert TRULUCK, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida.
    Jan. 14, 1959.
    Rehearing Denied Feb. 26, 1959.
    Charlton L. Pierce, Tallahassee, for appellant.
    Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for ap-pellee.
   PER CURIAM.

The appellant has been convicted and sentenced in the Circuit Court for Jefferson County, Florida, upon a jury verdict finding him guilty of the crime of rape without recommendation of mercy. The primary issue made upon appeal relates to the sufficiency of the evidence to support a conviction upon this charge as opposed to assault with intent to rape.

The events out of which the charge arose occurred in the early morning hours of March 24, 1957. The prosecutrix, a twenty year old white woman, was alone in her home with her two infant children after her husband left for work at approximately 3 a. m. Appellant testified that the back door was not locked and he entered the house because it was raining, and that when the woman was roused he grabbed her and struck her to keep her from screaming and to prevent her seeing who he was. He said that he “threw her down and fell right on top of her,” and upon cross examination as to whether he either raped or intended to rape her he acknowledged that his “pants was unzipped” and “I thought about that” but denied any specific intention or attempt to rape her.

When appellant ran away, the prosecu-trix took her two children and went to a neighbor’s house to report the attack. The police officer who first came to her aid said: “She didn’t tell me she had been raped. She told me he completed the job. What she meant by that, I don’t know.” She was given immediate medical attention and told the doctor and investigating officers later on that date that she had not been raped. The testimony as to her story at this time was that “she then said that there was a scuffle there, that she didn’t remember exactly how she got on the floor * * * but she does remember her mouth being torn, her face aching, and she remembers somebody hitting her in the head. * * * She told us at that time that -there had never been any penetration.” Bearing on prosecutrix’s condition at the ■time of her original statement, the officer ■said, “I would say that she was rational. She was considerably concerned about what 2ier husband had to say at the time.”

Testimony of the doctor was that medical "treatment given her was for external injuries only; that he observed extensive blood smears over her body including the •rectal and genital areas and evidence of ■pressure over the end of her spine, but did not make an examination to attempt to determine whether in fact she had been subjected to forcible intercourse because “she said she had not been raped; ” and that •she appeared to be competent and fully able do answer questions at the time.

On the basis of this report an information was prepared and filed charging appellant with assault with intent to commit Tape. Four days later the prosecutrix altered her story of events to relate that she •had actually been raped. In the words of the state’s attorney: “She later saw me and when sworn, told that she was actually raped, at which time, of course, I asked her why she told me before that she hadn’t been penetrated. She told me at that time that she had joined the Church and using her specific words as near as I can, that she had given her heart to God, and although she thought that the people would look down on her if she had actually been raped by a man of this type, that she was going to tell the truth regardless of the consequences and she was ready to swear under oath that there was an actual penetration.” Her statement, upon the inquiry being made “Did anything occur to you, or did you think about it before changing your mind or not ?,” was: “I thought and I prayed about it. Didn’t anybody have anything to do with it but myself. * * * I said no matter what happened, it was up to me to tell the truth, no matter what shame it brought me.”

On April 22, the date set for trial, the grand jury for Jefferson County returned an indictment against appellant charging him with rape, and trial proceeded on that charge. The prosecutrix testified, coinciding with the story of the accused, that throughout the scuffle he was at her back. She further stated, however, that at one point after she was thrown down on her face, her assailant did accomplish penetration, and when asked why she told the doctor she had not been raped, she said she “was kind of afraid the town would look down on me and I didn’t know what my husband would think. I was ashamed, scared, just naturally ashamed for people to know it.” There was no evidence that she told anybody, until four days later, that she had in fact been raped, or that she ever at any time sought or submitted to medical examination or treatment for what it might be worth in corroborating her assertion, or preventing disease or pregnancy.

Motion by defense counsel to reduce the charge to assault with intent to commit rape was denied, and following the verdict and judgment above noted a motion for new trial on grounds of insufficiency of evidence and failure to introduce corroborating testimony after impeachment by inconsistent statements, was denied, and sentence of death imposed.

We are fully cognizant of the long standing doctrine that because of the nature of the offense the direct testimony of the prosecutrix in a rape case need not necessarily be corroborated by independent evidence. Doyle v. State, 39 Fla. 155, 22 So. 272. The rule is, however, subject to the qualification that in order to sustain a conviction without other proof such testimony must be inherently clear and convincing and not materially discredited or impeached. Ex parte Tully, 70 Fla. 1, 66 So. 296; Annotation, 60 A.L.R. 1131. Corroboration, of course, generally goes only to surrounding facts and circumstances and not to the fact of the rape or penetration.

In this case the latter point is the narrow issue in dispute. On this thread hangs the life of this defendant. The pros-ecutrix admits having given contradictory statements with reference to it. Moreover, it appears without contradiction that she neither requested nor received medical advice or treatment following this tragic event in spite of the fact that she must have known of the possibility of contracting a venereal disease as well as a pregnancy by this negro man. These major circumstances going to the very heart of this case, together with a study of the remainder of the record in accordance with the mandate of Section 924.32, Florida Statutes 1957, F.S. A., leads us to the conclusion that the conviction herein is necessarily based upon evidence which as a matter of law falls far short of the “clear and convincing” test cited. Cf. McKee v. State, 159 Fla. 794, 33 So.2d 50, where, in spite of similar contradictory accusations pointed out in the opinion, the record shows the victim’s testimony at trial to have been substantiated by contemporaneous reports to her family at the time of the attack.

It is clear, however, that independent of the prosecutrix’ conflicting statements the evidence does establish and appellant here admits guilt of the lesser included offense of assault with intent to commit rape. Frenette v. State, 158 Fla. 675, 29 So.2d 869; Kite v. State, 126 Fla. 77, 170 So. 445. Pursuant to the provisions of Section 924.-34, F.S.1957, F.S.A., the judgment is reversed with directions that judgment be entered accordingly and sentence imposed for the offense of assault with intent to commit rape.

Reversed and remanded.

THOMAS, HOBSON, DREW, THORNAL and O’CONNELL, JJ., concur.

TERRELL, C. J., dissents.

ROBERTS, J., dissents with opinion.

ROBERTS, Justice

(dissenting).

The appellant was indicted for rape, was tried on the charge and convicted by the jury without recommendation of mercy. He has appealed from the judgment of conviction.

The victim of the attack was a 20-year-old married mother of two infant children, whose husband, a dairy employee, customarily left the home at around 2:00 or 2:30 a. m., to assume his duties at the dairy. It is admitted that the appellant entered the home at around 5:00 a. m., brutally assaulted the prosecuting witness and inflicted numerous wounds upon her, including one to her mouth which required six stitches to close. According to the testimony of an investigating officer, the appellant admitted that he intended to rape her but said that he got scared and “jumped up off her and left,” after struggling with her for several minutes. The prosecuting witness immediately took up her two children and fled across the street to her neighbor’s home where she spread the alarm that she had been attacked. The' appellant was apprehended later that day and identified by the prosecuting witness as her assailant.

On the day of the attack the prosecuting witness stated to the authorities and to the doctor who examined her that the appellant had attacked her and had a discharge but had failed in his efforts to penetrate her. Four days later she changed her story and told the authorities that the appellant had actually penetrated her on the night of the assault. She so testified at the trial. The principal contention of the appellant on this appeal is that the two contradictory statements of the prosecuting witness as to penetration make her testimony at the trial unworthy of belief and, this being so, the evidence was insufficient to support a verdict finding him guilty of rape. This contention is untenable under the authority of McKee v. State, 1947, 159 Fla. 794, 33 So.2d 50, 51.

In that case, the facts were substantially similar to the facts in the instant case and, in addition, the prosecuting witness refused to have a medical examination following the assault. In affirming the judgment convicting the accused of rape, this court said:

“ * * * 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 cumulative 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.”

It is true that, in McKee v. State, supra, the jury recommended mercy and that they did not do so in this case. But we find little reason for extending mercy to the appellant here. When he entered the home of a 20-year-old mother with two infant babies, mercilessly beat and mutilated her and, by his own admission, knocked her down and got on top of her and satisfied himself, he was not extending mercy and the jury was completely justified in declining to extend mercy to him. The jury had the right to believe the testimony as to penetration given by the prosecuting witness on the stand. McKee v. State, supra. The cause was submitted to the jury under instructions that properly stated the law applicable to the evidence adduced and to which no objections are here made. The penalty for rape is prescribed by law.

No error having been made to appear, the judgment here reviewed should be affirmed and I must therefore dissent from the majority opinion and judgment of reversal.

TERRELL, C. J., concurs.  