concurring. — I concur in the conclusion, but dissent from that part of the opinion that lays down the rule that if a woman resist an assault for a time, but finally consents (but not from fear or inability to resist further), to have sexual intercourse with her alleged assailant, he may be convicted of assault with intent to commit rape. Such a rule would place at the mercy of' his paramour any man who aroused her latent passion by an access of ardor or violent amatory embraces so that she became his willing partner in the enjoyment of their elemental desire.
Notwithstanding what other courts have said on this subject,, the rule sought to be laid down in this case seems to be at variance with the doctrine announced by this court in the case of Hunter v. State, 29 Fla. 486, 10 South. Rep. 730, that “the gravaman of the offense in an indictment charging an assault with intent to rape is the intent with which the assault is made. * * * The intent in such cases must be shown by the State to have so possessed the acused that his determination was to consummate the rape regardless of resistance and want of consent-”.
In that case this court held that it was error to refuse to give this instruction: “If the jury has a reasonable doubt as to whether the defendant was at the time he put his hands upon the prosecutrix tying to get her consent to an improper intercourse, or commit the cime of rape, they should give him the benefit of the doubt and acquit him.”
*632Even if the rule injected into this case were a safe and sound one, I would feel obliged to dissent, as there is nothing in the record to warrant it. It was uncontrovertably proven that these parties did not have sexual intercourse with each other, and it is not contended that she finally consented. It is obiter dicta, of the strongest character, unwarranted and uncalled for by proven facts.
It fits admirably in a moral essay, but not in a judicial deliverance on the where theer is nothing in the record upon which it can be predicated.