53 Fla. 56 | Fla. | 1907
The plaintiff in error, hereinafter referred to as the defendant, was indicted at the Fall term, 1906, of the circuit court in and for Santa Rosa county, for an assault with intent to commit murder in the first degree. On the 26th day of September, 1906, he was tried and convicted of an assault with intent to commit manslaughter. He was sentenced to the State prison for five years, and seeks a reversal of this judgment by writ of error.
There are four assignments of error. The first and second errors assigned have been argued and will be considered together. They are:
“The court erred in refusing to give special instruction No. 1, requested by the attorney for the defendant in the court below, which was as follows: If you should .find from the evidence that the defendant unlawfully assaulted Dove Lindsey with a deadly weapon, but that in so doing
2. The court erred in not charging the jury the law as to aggravated assaults.”
We cannot discover from the transcript of the record that the defendant ever requested the court to give the instruction as set out in the first assignment of error, and, therefore, we cannot consider it. Special instruction No.. 1, requested by the defendant in the court below, as it is evidenced to us by the bill of exceptions in the transcript of the record before us, reads as follows: “If you should find from the evidence that the defendant unlawfully assaulted Dove Lindsey with a deadly weapon, but that in so doing he had no premeditated design to effect death nor intent to kill, you would find the defendant not guilty of an aggravated assault.”
The refusal of the court to give the last quoted charge is not assigned as error, or no assignment based thereon is argued, and, therefore, we cannot consider whether the court erred in refusing to give this charge. Indeed, counsel for plaintiff in error do not contend here that the charge as set forth in the bill of exceptions .ought to. have been given by the court. They have proceeded in argument as if the special instruction No. 1 requested by the defendant reads just as it appears in the first assignment, and that in that shape it should have been given. But we must take the charge as it is duly evidenced to us in the bill of exceptions, and not as we find it written in the assignment of errors. The two charges, one in the bill of exceptions. and the other in the first assignment of errors, are materially different. The difference between the two charges is not patently a clerical error. We cannot say that the appearance of the word “not” in the last line of the charge
Under the second assignment of error, the plaintiff in error tries to present the same question sought to have been raised by the first assignment of error, namely: that the court ought to have given a charge on the law as applied to an aggravated assault like the instruction set forth in the first assignment of errors; and the suggestion is made that such a “charge ought to have been given by the court sua sponto” It is the settled practice in this State, however, that if a party wishes to avail himself of the omission of the court to charge the jury on any point in the case, or on all the grades of homicide to which the evidence is reasonably applicable, he must .ask the court, at the time, to give the instruction desired, hy writmg out the instruction desired and presenting same, to the judge, otherwise he will not be permitted to assign the omission to so charge as error. Irvin v. State, 19 Fla. 872; Lovett v. State, 30 Fla. 142, 11 South. Rep. 550; Blount v. State, 30 Fla. 287, 11 South. Rep. 547. The defendant having written out the instruction he desired to have the court give on the grade of the offense of an aggravated assault, he can not now assign as error the failure of the court to give some other instruction which the defendant did not ask the court to give, but which he thinks noio the court ought to have given.
The trial court, however, seems not to have noticed the presence of the word “not” in the charge. The court denied the special instruction No. 1 “because the offense of ag
As stated in Clark’s Criminal Procedure, section 122, p. 351, “It is a general rule at common law 'where the accusation in the indictment includes an offense of inferior degree, the jury may discharge the defendant of the higher crime, and convict him of the less atrocious.’ This rule has been expressly declared by statute in many of our States.”
Section 2921 -Revised 'Statutes- of 1892, which is now Section 3991 of the General Statutes of 1906, is as follows : “Whenever any person indicted for a felony shall on trial be acquitted by a verdict of part of the crime charged, and convicted on the residue thereof, such verdict may be received and recorded by the court; and thereupon any person charged shall be adjudged guilty of the crime, if any, which shall appear to the court to be substantially
Section 1, Chapter 4392, acts of 1895, which is now section 4007 of General Statutes of 1906, reads as follows: “In all criminal prosecutions hereafter begun in this State, if the defendant be found guilty of an offense lesser in degree, but included within the offense charged in the indictment or information, such verdict shall not be set aside by the court, upon the ground that such verdict is contrary to the evidence, if the evidence produced in such case would have supported a finding, or if such court would have sustained a verdict of guilty of the greater offense.”
Clark in his Criminal Procedure, page 356, says: “In all cases the minor offense must be necessarily included in the charge. The indictment must, on its face, show every essential element of it, otherwise the defendant would be convicted of an offense without having been accused of it. No one can be convicted of an offense which is not charged in the information, where the elements of the offense are not embraced in some greater offense charged.” See, also, Winburn v. State, 28 Fla. 339, 9 South. Rep. 694; Wiliams v. State, 41 Fla. 295, 26 South. Rep. 184; Bryan v. State, 45 Fla. 8, 34 South. Rep. 243; Pyke v. State, 47 Fla. 93, 36 South. Rep. 577.
The greatest offense charged against the defendant in the instant case is assault with intent to murder in the first degree. The gist of this offense consists in the intent with which the assault is made. Williams v. State, 41 Fla. 295, text 297, 26 South. Rep. 184; Gray v. State, 44 Fla. 436, 33 South. Rep. 295; Drummer v. State, 45 Fla. 17, 33 South. Rep. 1008; McDonald v. State, 46 Fla. 149, 35 South. Rep. 72. It is not necessary to this crime, under
The gist of the offense of an aggravated assault, under Section 2402, Revised Statutes of 1892, now section 3228 General Statutes of 1906, consists in the character of the weapon with which the assault is made; and, in a prosecution for this offense an assault with a deadly weapon must be alleged and proved, but the intent with which the assault was made, whether to wound or to injure or whether the assault was made with any particular intent is immaterial, unless the intent should amount to an intent to kill or a premeditated design to effect death, in which case the assaulting party would be guilty of an assault with intent to commit manslaughter, or murder. Williams v. State, supra. In other word's, whoever assaults another with a deadly weapon, not having a premeditated design to effect his death and not having any intent or design to take life, is guilty of an aggravated assault. Where the assault is made with a deadly weapon and from a premeditated design to effect the death of the party assaulted the crime is assault with intent to commit murder in the first degree. If such assault is made with an intent to take life, but such intent does not amount to a premeditated intent or design, the crime may be assault with intent to commit murder in the second degree or manslaughter, according to the facts of the case.
Examining the indictment in the case before us, we find that it does not charge that the assault was made with a deadly weapon, and therefore the essential ingredient to a charge of aggravated assault, a deadly weapon,
11. The third assignment of error is based upon the following charge of the court: “A jury would not be justified in acquitting a defendant on account of the consequences to him or his family alone. They have nothing to do with
We do not think this instruction is erroneous for the reason charged here that it showed the jury that the “court was of the opinion that this defendant should be convicted,” or that the instruction “tended to cause the jury to disregard the presumption of the innocence of the defendant.” The court charged the jury fully and fairly upon the presumption of innocence. It is not objectionable for the court to call the attention of the jury to the fact that they are to try the case by the evidence given to them, and not by their sympathies, or by the consequences to the defendant or his family, Adams v. State, 28 Fla. 511, text 554, 10 South. Rep. 106. Again, objection is made to the part of this charge wherein it is stated: “Neither would it be a defense that the party assaulted was not the proper kind of a man — that is to say that he himself may have been a violator of the law.” It is urged here that by the use of the words “that he himself may have been a
III. The fourth assignment of error is the overruling of defendant’s motion for a new trial, and the only grounds of the motion not heretofore considered is that the verdict of the jury is contrary to the evidence, unsupported by the evidence, contrary to law and the charge of the court. These grounds involve a discussion of the evidence and its sufficiency to support the verdict. We have very carefully read and considered the evidence in this case. The parties
The judgment is affirmed.