The appellant, Howard B. McKee, on July 11, 1946, was indicted by a grand jury of Dade County, Florida, for the crime of rape. He was duly arraigned and entered a plea of not guilty, and shortly thereafter was placed upon trial before a jury in the Circuit Court of Dade County. Evidence was adduced by the State and the defendant and the jury, after hearing the evidence, argument of counsel and charges of the Court rendered a verdict of guilty, with recommendation of mercy. A motion for a new trial on various grounds was presented and by appropriate order denied. The Court below sentenced the appellant to the State Prison at hard labor for a period of his natural life. The defendant below appealed.

The controlling question presented by this appeal is the sufficiency of the evidence adduced by the State to establish *Page 799 the material allegations of the indictment. The burden of proof by law was on the State of Florida in the court below to establish the guilt of the defendant beyond a reasonable doubt. In many of our adjudicated cases we have held if there was room for differences of opinion between reasonable men as to proof of facts from which ultimate facts are sought to be established or where there is room for such differences as to inferences which may be drawn from conceded facts, these conflicts and disputed issues should be submitted to a jury under appropriate instructions. Holland v. State, 129 Fla. 363, 176 So. 169.

The record discloses that the assaultee at the time of the alleged attack was forty-six years of age, a widow, weighed 146 pounds and the mother of two grown children. The appellant (defendant below) at the time of the alleged attack was thirty-three years of age, married and the father of one child and was living with his family. He had suffered infantile paralysis since he was six years of age and then weighed about 130 pounds and had been classified as 4-F by the Army. He had lived in Miami for about three years at the time and was employed as a food concessioner at the Biscayne Dog Track.

The testimony further discloses that the appellant and assaultee were passengers on the same street car in the early morning of May 1, 1946, and riding toward their respective homes situated on the outskirts of the City of Miami. The street car stopped at 27th Avenue, Coral Way, when the assaultee got off and was then about four blocks from her home. The car crossed the Avenue, when the appellant left the car and followed the assaultee and overtook her about two blocks from where they alighted from the car. The testimony is in sharp conflict in many details as to what occurred after the appellant overtook the assaultee, each party reciting a different version of the controversy.

The appellant denied that he assaulted the assaultee for any purpose other than getting her money; that he concluded from her conversation on the street car that she had money on her person won by her at the races and he simply followed her out for the sole and only purpose of taking her money. He *Page 800 took her bag and failed to find money in it. It is not disputed that the assaultee had bruises, wounds and discolorations about her neck and body and some scratches about her lower limbs and was highly nervous for several days thereafter. The attack was immediately reported to the officers, which resulted in the arrest of the appellant on the following day.

The assaultee advised the police officers that her assailant only assaulted her and she stuck to the story until a hearing before the Justice of the Peace on the following Monday, when she testified that the appellant raped her. Her reason for not telling the officers that she had been raped was that her son, she feared, would do violence to the assailant, but she advised her son immediately thereafter that she had been raped. One of the police officers suggested prior to trial before the Justice of the Peace that if she had been raped she should be taken to a physician for examination and treatment, but she clung to the story that she had not been raped but only assaulted. The assaultee having stated first that she had been assaulted only and afterwards that she had been raped requires a close study and analysis of all testimony as given by her so as to harmonize, if possible, these contradictory statements and arrive at the truth of the controversy. In the case of Coker v. State, 83 Fla. 672, 93 So. 176, we held that where the prosecutrix was the sole witness to the act, her testimony should be rigidly scrutinized to avoid an unmerited conviction for a capital offense.

In the case of Bailey v. State, 76 Fla. 213, 79 So. 730, this Court had before it the question of resistance on the part of an assaultee and in part said:

"The jury are the sole judges of the credibility of the witnesses, and the weight of the evidence, but not of its sufficiency. They must have believed that the prosecutrix told the truth, but what she said did not show sufficient resistance on her part to the defendant's advances to exclude the idea that her opposition to his will was nothing more than pretense; or at any rate that the act was consummated while she, though `saying I'll ne'er consent, consented.'"

The verdict and judgment challenged on this appeal rests on the uncorroborated testimony of the prosecutrix who admits *Page 801 that she charged the appellant first with an assault with the intent to rape and second, some four or five days thereafter, changed the charge and testified that the appellant raped her. She declined the suggestion of a police officer that she be examined by a physician prior to trial. The alleged attack, as disclosed by the record, occurred in the yard of a residence and within two blocks of her home but she failed to give an alarm or call for help. The State does not contend that the appellant was armed or then and there had a weapon with which he could injure or hurt the assaultee. When requested by the appellant to remove an under garment, according to her testimony she declined so to do but co-operated with the appellant to the extent of holding it to one side when the act was committed. It is not disputed that the appellant was classed as 4-F by the Army; that he weighed 130 pounds; was 33 years of age and had an attack of infantile paralysis when around six years of age. The assaultee weighed 146 pounds and was 46 years of age. It may be assumed that she enjoyed good health because she had been seeking employment as a waitress.

The crime of rape is easy to prove but difficult to defend and the penalty prescribed by law is severe. It is fundamental that every essential element of the crime of rape should be established by competent evidence beyond a reasonable doubt on the part of the State of Florida before a judgment of conviction should be permitted to stand. The evidence in the case at bar fails to measure up to these requirements. Section924.34, Fla. Stats. 1941 (FSA), authorizes the appellate court of Florida in certain criminal offenses divided into degrees or when the offense charged includes a lesser offense and the evidence fails to establish the offense of which the defendant was found guilty and the evidence clearly establishes the guilt of the lesser offense, then the judgment may be reversed by an order of this Court with directions to the lower court to enter a judgment for the lesser degree or offense and pass sentence accordingly. See McRane v. State, 148 Fla. 22, 3 So. 2d 502; Bronson v. State, 152 Fla. 28, 10 So. 2d 718; Douglas v. State, 152 Fla. 63, 10 So. 2d 731. *Page 802

It is our conclusion that the evidence is legally insufficient to establish the essentials of the crime of rape but is sufficient to support a judgment for the crime of assault with intent to commit rape. So I think the judgment should be reversed with directions to the trial court to enter a judgment for the crime of assault with intent to commit rape and enter or pass sentence accordingly. See Section 924.34, supra.

THOMAS, C. J., and SEBRING, J., concur.