Gragg v. State

177 So. 2d 59 | Fla. Dist. Ct. App. | 1965

HENDRY, Judge.

This is an appeal of a third degree murder conviction and sentence based on a jury verdict

Appellant was informed against and tried for murder in the second degree. The jury returned a verdict of guilty of murder in the third degree. Appellant’s motion for a new trial was denied and he now prosecutes this appeal. In support of his appeal appellant contends:

(1) the trial court erred in failing to grant his motion for a mistrial based on a question asked of the trial judge by the jury,

(2) the trial court erred in allowing into evidence over objection photographs depicting the deceased and

(3) the evidence was legally insufficient to warrant or sustain his conviction.

Appehaut’s points one and two have been considered and found to be without merit. However, we find merit in point three. After having carefully reviewed the record, we conclude that the evidence was insufficient in law to sustain the verdict. There was nevertheless sufficient evidence to establish appellant’s guilt on a charge of manslaughter.

The judgment is therefore modified with directions to adjudge appellant guilty of manslaughter and sentence him as may be appropriate.¹

It is so ordered.

1 . Febre v. State, 158 Fla. 853, 30 So.2d 367 (1947).