86 Fla. 276 | Fla. | 1923
Plaintiff in error, Allen Cason, was indicted and tried upon a charge of assault with intent to commit murder in the first degree. The verdict returned found him guilty as charged. To review the judgment imposing sentence upon him writ of error was taken from this court.
There are a number of assignments of error, but generally they may be grouped under three heads, namely; (1) the sufficiency of the evidence to support the verdict; (2) the failure of the trial court to instruct the jury upon the law applicable to lower degrees of offense charged in the indictment than assault with intent to commit murder in the first degree; and (3) rulings of the court overruling objections on behalf of defendant to the admission in evidence of a pistol and certain bullets and clothing and other articles.
With respect to the first question the principal contention is that the identity of the accused was not proved.
Upon the second question the rule is well established in this jurisdiction that “if a party wishes to avail himself of the omission of the court to charge the jury on any point in the case, he must ask the court to give the instruction desired; otherwise he will not be permitted to assign the omission as error.” Cross v. State, 73 Fla. 530, 74 South. Rep. 593; Herndon v. State, 73 Fla. 451, 74 South. Rep. 511; Hicks v. State, 75 Fla. 311, 78 South. Rep. 270; Miller v. State, 76 Fla. 518, 80 South. Rep. 314; Hobbs v. State, 77 Fla. 228, 81 South. Rep. 444; Witt v. State, 80 Fla. 38, 85 South. Rep. 249. If there is anything to the contrary in the case of Johnson v. State, 53 Fla. 45, 43 South. Rep. 779, it is overruled by Cross v. State, supra. No instruction on the point was requested.
It is considered unnecessary to review the evidence of identity of the several articles which were offered and received in evidence. Their identity, we think, was sufficiently shown to permit their introduction, and the orders of the court overruling objections interposed and refusing to exclude them were not erroneous.
There was no abuse of its discretion by the trial court in permitting witnesses who were officers of the court,
The judgment is affirmed.