44 Fla. 94 | Fla. | 1902
At tbe Spring term, 1900, of the Circuit Court of Alachua County, plaintiff in error was tried and convicted upon an indictment found at that term, charging an assault with intent to commit the felony of murder in the first degree. Before pleading in bar defendant filed pleas in abatement which, upon the State’s demurrer, were held bad. From the sentence imposed a writ of error was taken to this court, where the judgment was reversed and a new trial awarded for error found in an instruction given by the court at the trial (Knight v. State, 42 Fla. 546, 28 South. Rep. 759).
Thereafter, at the Spring tei*m, 1901, defendant moved the court for leave to withdraw the plea of not guilty, and for permission to file a plea in abatement. This motion was overruled and defendant excepted. During the same term defendant filed his motion to quash the indictment upon the following grounds: 1st. It is vague, indefinite and uncertain. 2nd. It does not charge the offense in the language of the statute. 3rd. It charges no offense against the laws of Florida. 4th. It does not set forth the name, or particularize the manner of the commission, of the offense claimed to have been committed. 5tli. It does not charge how, or in what manner, or at what place, or upon what portion of the person of Ben Brown the defendant shot off and discharged the pistol. 6th. It does not set forth the offense sufficiently plain to enable defendant to properly make his defense thereto. 7th. It is not. so framed, nor is the offense sufficiently specified and described, as that defendant would be able
From the bill of exceptions it appears that after the parties had concluded their testimony, the defendant requested the court in writing “to give certain instructions in behalf of defendant, after giving the charges for the State,” that the court gave such requested instructions, before any other charges were given, and then proceeded to give the jury certain instructions set out in the bill of exceptions of his own motion. The requested instructions so given are not incorporated in the transcript of the record or bill of exceptions, and it does not appear that any instructions were requested on behalf of the State. The defendant excepted to the action of the court in giving his requested instructions prior to giving those given on its own motion. By the charges numbered 1 to 6, given by the court of its own motion, the jury were instructed that the indictment against defendant embraced the charges of an assault, an assault with intent to commit murder in the first degree, an assault with intent to commit murder in the second degree, an assault with intent to commit manslaughter, and an aggravated assault, and each of these offenses was fully defined. Then follows the seventh instruction by which the jury are told that if they believe from the evidence that the defendant assaulted Brown with a deadly weapon, to-wit:
The defendant moved for a new trial upon the following grounds: 1st. The verdict is contrary to the evidence and the weight of the evidence. 2nd. The verdict is contrary to the law and the iciha.rge of the court. 3xvd. The court erred in refusing to give the instructions asked for by defendant, after the court had given the ohax’ges for and in behalf of the State1, áth. The court erred in
Thereafter, in due course, the defendant moved in arrest of judgment upon grounds questioning the sufficiency of the indictment, which motion was overruled. Most of the grounds of this motion are substantially the same as grounds embraced in the motion to quash, but other grounds of the motion in arrest are to the following effect: 2nd. The indictment fails to allege that defendant shot off and discharged the leaden bullets upon the body, limb or person of Ben Brown. 7th. The indictment is insufficient in law, form and substance upon which to base a judgment, and does not charge in sufficient language the description of the commission of the offcu.se of murder as to show from the face of the indictment that murder was intended, or that death could have resulted from the shooting off or discharging of the pistol named therein. The court entered judgment upon the verdict, sentencing defendant to imprisonment in the State prison at hard labor for two years, and from this judgment the present writ of error is taken.
The assignment of errors complains that the court erred in the following rulings: 1. Sustaining the State’s demurrer to defendant’s plea in abatement. 2. Overruling the defendant’s motion to withdraw his plea of not guilty and to file a plea in abatement. 3. Overruling defendant’s motion to quash the indictment. 4. Overruling defendant’s motion for a new trial. 5. Overruling defendant’s motion in arrest of judgment. 6. Eutering the judgment and sentence against the defendant.
II. It is discretionary with the trial court whether it will permit the plea of not guilty in a criminal case to be withdrawn in order to allow a plea in abatement to be filed, and in some of the decisions of this court so holding, doubts are expressed as to whether an appellate court will ever interfere with that decision. Savage v. State, 18 Fla. 909; Adams v. State, 28 Fla. 511, 10 South. Rep. 106; Hodge v. State, 29 Fla. 500, 10 South. Rep. 556. If it be that such discretion will be controlled by an appellate court where it has been abuised, no abuse is shown in this case. Pleas in abatement had at a former term been interposed which, upon demurrer, were held bad, and without asking leave to amend them, the defendant submitted to arraignment without objection, interposed his plea of not guilty and went to trial on the merits. No motion to withdraw the general issue or.to file another plea in abatement was made until the cause was again called for trial after the judgment of conviction on the former trial had been reversed by this court, and the plea which it was desired to file was not tendered with the motion, nor was its nature indicated to the court. Under such circumstances no abuse of discretion is shown. Hodge v. State, supra.
III. The third and fifth assignments will be considered together. The objections to the indictment urged under these, assignments of error are that it does not specifically -allege that the pistol was discharged upon the person of Ben Brown, but only that it was discharged at and upon
The sixth assignment of error is not argued, and must, therefore, be treated as abandoned.
The judgment of the Circuit Court is affirmed.