The plaintiff in error was convicted in the Circuit Court of Volusia County on indictment charging *Page 405 him with the crime of rape. The verdict of the jury was "guilty as charged with recommendation to mercy."
There is not only ample but fulsome evidence to sustain the verdict of guilt and but little, if anything, to warrant the recommendation to mercy.
The indictment was returned on May 13th charging the crime to have been committed on May 10th. Counsel was appointed on May 16th. The defendant was arraigned on May 17th and trial began on the same day.
There was a motion to quash the indictment which was without merit, a motion for change of venue, which in no wise met the rule and a motion for continuance upon the ground that the defendant had not had time or opportunity to prepare his defense.
Subsequent events during the progress of the trial showed that in this particular case no harmful error was committed by denying the motion for a continuance or a postponement of the trial. The defendant took the stand in his own behalf and denied the commission of none of the essential elements of the crime charged against him. His only defense was that he voluntarily drank liquor and beer to such an extent that his mind became an absolute blank, while he was drinking at a place where the same was served, and remained so until after the crime was alleged to have been committed when he was running from the people who captured him immediately after his return with his alleged victim to the home of her mother, at which place the record shows he jumped out of an automobile and ran.
The entire record discloses that while he was drinking he was not so drunk as for intoxication to interfere with his conduct or movements. That he committed the crime alleged is established beyond question and it is not remotely probable that the defense which he made, which after all was no defense, could have been made stronger or any *Page 406 more to his advantage by any delay. In fact, the record discloses, as hereinbefore intimated, that he was indeed fortunate in being tried by a jury which found some excuse to recommend him to the mercy of the court which reduced the punishment from possibly death to life imprisonment.
The judgment should be affirmed and it is so ordered.
Affirmed.
WHITFIELD and TERRELL, J. J., concur.
ELLIS, J., concurs in conclusion.
DAVIS, C. J., and BROWN, J., dissent.