255 So. 2d 559 | Fla. Dist. Ct. App. | 1971
The appellants are husband and wife. They were jointly informed against, charged with “wantonly and maliciously” shooting “at and into a dwelling house” which was then and there occupied by one James Tolbert, contrary to chapter 790.19, General Laws of Florida. They were both convicted guilty as charged. The trial court sentenced each to five years in state prison.
We recognize the rule that the appellate courts will not substitute their judgment for that of a jury on disputed questions of fact; however, it is the duty of the court to review the evidence to ascertain whether there was sufficient evidence to support the verdict and judgment in the lower court.
In this case there was sufficient evidence that there was a shot fired by the defendant, Vernon Barlow, which went into the roof of the front porch. It is apparent that there was no effort to do personal harm to the occupants of the dwelling, but we believe, and so hold, that the statute and the information are broad enough to cover the acts of said appellant and the jury was justified in returning the verdict as to the said Vernon Barlow, although the question of maliciousness was very weak.
As to Betty Barlow, we think the evidence fails to support the charge that the said Betty Barlow did knowingly aid, abet and counsel or otherwise procure the commission of the crime, to wit the shooting. The most the evidence shows about Betty Barlow was that she was there and did take part in the ruckus, but there is no evidence that she knew Vernon had a gun or that she, encouraged him to use it. Therefore, as weak as the evidence is against Vernon Barlow as to malice, we cannot agree with the finding of the jury as to Betty Barlow, and the conviction of Betty Barlow, and judgment and sentence are hereby reversed and set aside.
Affirmed as to appellant, Vernon Barlow, and reversed as to Betty Barlow.
