72 Fla. 1 | Fla. | 1916
—Walter Barrentine and Millie Barrentine seek relief here from a conviction of the crime of murder in the first degree. In their verdict the jury having recommended the defendants to the mercy of the court, they were sentenced to confinement in the State prison at hard labor for life.
The first assignment is based upon the overruling of the motion to quash the indictment, which consists of two counts, but, as the defendants were convicted under the first count, the legal effect of the verdict was to acquit them of the offense charged in the second count, therefore it becomes unnecessary to consider such second count. Salon v. State, 70 Fla. 622, 70 South. Rep. 603. The first count is as follows :
It seems to be unnecessary to copy the grounds of the motion to quash. It is contended here that this count is fatally defective for the reason that it fails to allege that the gun which the two defendants are alleged to have had and held in their hands was shot by them, or either of them, at the person of the deceased. In other words, that there is no allegation that such gun was discharged by any person at or against the body of the deceased, or that either of the defendants shot such gun. In support of this assignment, the defendants cite Wharton on Homicide (3rd ed.) sections 558 and 566, and I McClain on Criminal Law, section 378. We have examined these authorities and are of the opinion that they fail to support this contention of the defendants. We have also examined some of the cases which these authors cite in the notes and they strengthen us in this conclusion. As is said in Section 566 of Wharton on Homicide: “The rule that an indictment for murder must state the manner of death means merely that the particular mode by which death was caused, whether by shooting, stabbing, beating, or striking, strangulation, or poisoning, etc., must be set forth, and not that the manner of the connection of the accused with the use of that mode shall be made to appear. Thus, an indictment charging two or more per
We approved and followed this holding in Michael v. State, 40 Fla. 265, 23 South. Rep. 944, and Newton v. State, 51 Fla. 82, 41 South Rep. 19. Also see Sections 3961 and 3962 of the General Statutes of 1906, Compiled Laws of 1914, which are discussed in Michael v. State, supra, and Newton v. State, supra. As we have several times held in construing these two statutes: “It is the declared policy of the Legislature, as well as of this court, to uphold indictments and informations whenever there has been a substantial compliance therein with the statutory requirements.” See Barber v. State, 52 Fla. 5, 42 South. Rep. 86; Lewis v. State, 55 Fla. 54, 45 South. Rep. 998; Tillman v. State, 58 Fla. 113, 50 South. Rep. 675, 138 Amer. St. Rep. 100, 19 Ann. Cas. 91. This assignment has not been sustained. The second assignment is abandoned.
The third assignment is based upon the refusal of the
The general charge given by the court would seem to have covered the law applicable to the case fully and correctly, no assignments being predicated upon portion thereof. In addition thereto, the court gave nine separate instructions at the instance of the defendants, all that were requested, with the exception of this instruction No. io, which we are now considering and one other. The bill of sale to which this requested instruction refers was a bill of sale to a certain described horse and buggy which purported to have been executed by the deceased person for the murder of whom the defendants were on trial was introduced in evidence by the defendants, without objection by the State. It appeared to be fair and regular on its face and properly executed. The State did not atack its execution or question its genuineness. The occasion for its introduction by the defendants would seem to be because witnesses for the State had testified to the effect that a horse and buggy found in the possession of the defendants had formerly belonged to the deceased. Even so, the defendants got the benefit of the bill of sale in connection with testimony which they introduced, and we see no occasion for singling such a bill of sale out from other circumstances which were introduced in evidence and giving the requested instruction concerning the same. We fail to see wherein any reversible error was committed in the refusal of this instruction, therefore must hold that this assignment has failed.
The refusal of the following requested instruction forms the basis of the fourth assignment:
We are of the opinion that the matters of law set forth in this requested instruction were fully and more clearly and correctly covered by the general charge given by the court, therefore no error was committed in refusing it. See Robertson v. State, 64 Fla. 437, 60 South. Rep. 118.
The fifth and last assignment is based upon the overruling of the motion for a new trial. The only grounds of this motion which are urged before us question the
No reversible error having been made to appear, the judgment must be affirmed.
Taylor, C. J. and Cockrell, Whitfield and Ellis, JJ. concur.