McKinney v. State

74 Fla. 25 | Fla. | 1917

Ellis, J.

The plaintiff in error was convicted in the Circuit Court for Dade County of the murder of James Balton and sentenced to death. The case is brought here by writ of error.

The transcript of the record which was filed in this court upon the return of the writ did not show that the defendant -below had been arraigned or had pleaded to the indictment or that any judgment had been entered in the case.

On the 24th of April, seven days after the return day of the writ of error a certified copy of the judgment and sentence in the case was filed in this court, and on the 23rd day of May of this year, more than one month after the return day of the writ “a true and correct copy of excerpts from the minutes” of the Circuit Court in the case was filed, which shows that the defendant was arraigned and pleaded not guilty to the indictment; that a jury was empanelled and sworn, and the verdict and judgment;

There are ten assignments of error, but all of them are based upon errors alleged to have occurred at the trial, including errors alleged to have .been committed by the court in giving certain charges to the jury and refusing others requested by the defendant. While under the statute, charges in a capital case are -required to he wholly in writing and, when signed by the judge and-filed become part of the record in the case, (Morrison v. State, 42 Fla. 149, 28 South. Rep. 97; Sections 3990 and 1499 Gen. Stats. of Florida, 1906, Florida Compiled Laws, 1914), and-need not therefore be incorporated in the bill of exceptions. Charges which the defendant requests to be given, but which are refused, should also be signed by the judge and exception duly taken to the refusal to give each one if it is desired to have the refusal to give them reviewed. See Colson v. State, 51 Fla. 19, 40 South. Rep. 183; Savannah, F. & W. R. Co., v. Brink, 44 Fla. 713, 33 South. Rep. 245. In this cases no exception appears to have been taken to the refusal to give the requested instruction numbered three. Excep tion however was taken to the refusal to give requested, instruction numbered four. When charges are criticised as being inapplicable.to the evidence; the evidence must be contained in the bill of exceptions, otherwise this court cannot know and be informed whether the criticism be well founded or not. In this transcript the evidence taken at the trial is not included in the bill of exceptions. There is contained in the transcript a copy of what is called a “report of the testimony and. proceedings had at the trial of said cause on the 17th day of January, 1917.” It is unauthenticated by the-certificate or signature of the trial judge as required by the; statutes of Florida and the rules of this court. See Section 1694 Gen. Stats. 1906, Florida Compiled. Laws, 1914; Rules 97, 98, 103 Circuit Court Law Actions. And cannot therefore be considered by this court. See Frisbee v. Timanus, 12, Fla. 537; Gallahar v. State, 17 Fla. 370; Burroughs v. State, 17 Fla. 643; Waddell v. Cunningham, 27 Fla. 477; 8 South. Rep. 643; Brown v. State, 29 Fla. 543, 10 South. Rep. 736; Reeves v. State, 29 Fla. 527, 10 South. Rep. 901; Bacon v. Green, 36 Fla. 325, 18 South. Rep. 870. It would seem that the duty of the party resorting to an appellate court, for the correction of alleged errors at the trial, to make the errors apparent, is almost self evident. It is certainly a very reasonable, simple and common sense proposition and should commend itself to any one entrusted with business before the courts. This court has in a number of cases said that such was the duty of one who seeks to overcome in an appellate court the presumably correct judgment of a trial court. See Clinton v. State, 53 Fla. 98, 43 South. Rep. 312, and cases therein cited.

There is included in the bill of exceptions a statement to the effect that during the trial the State produced and offered in evidence “a certain prescription in which morphine was prescribed for one Clarence McKinney.” To the introduction of this prescription in evidence the defendant objected and the objection was overruled. That ruling of the court was made the basis of the fourth assignment of error. It also appears from the bill of exceptions that, the State produced a witness named “F. L. George who testified that he filled the prescription heretofore mentioned and that the prescription when filled was sent to the county jail for Clarence McKinney,” but the witness could not testify that Clarence McKinney and C. C. McKinney were one and the same person. Thereupon defendant’s counsel moved to strike the testimony of the witness George. The court overruled the motion and the ruling is made the basis of the fifth assignment of error. The assignment is much broader than the motion as it includes a motion to strike the prescription from the files. No error appears to have been made by the court in either ruling. The evidence may have developed many reasons why the administering of morphine to the defendant after his arrest and incarceration was an important and relevant fact and there is nothing to show that Clarence McKinney and the defendant were not one and the same person. The fact that the witness George did not know that Clarence and C. C. McKinney were one and the same person did not show the contrary to be true. These two assignments of error should fail, because; in the absence of any showing that the evidence was incorrectly admitted and harmful to the defendant, the presumption which exists in favor of the correctness of the Court’s ruling obtains. See Clements v. State, 51 Fla. 6, 40 South. Rep. 432; Southern Home Ins. Co. v. Putnal, 57 Fla. 199, 49 South. Rep. 922; Hainlin v. Budge, 56 Fla. 342, 47 South. Rep. 825; Lewis v. State, 55 Fla. 54, 45 South. Rep. 998.

In view of the character of this case, the serious consequences to the defendant of a conviction of murder without recommendation to mercy, we have notwithstanding the failure of counsel to' present in the transcript a complete bill of exceptions examined the statement purporting to be a report of the testimony and read the charges given at request of the defendant and those refused as well as the court’s general charge, but we find no reason in law for disturbing the jury’s verdict. The charges numbered three and four which were requested to be given by the defendant and refused were sufficiently covered in substance by the court’s general charge. The jury were fully instructed that the burden of proving every material allegation contained in the indictment was upon the State; that the presumption of innocence followed the defendant through every stage of the trial; that the jury should try the defendant fairly, dispassionately, calmly and according to the evidence, and that there were no presumptions against him. This court has many times held that it is not error for the ‘court to refuse to read charges already given substantially. See Sherman v. State, 17 Fla. 888; Butler v. State, 35 Fla. 246, 17 South. Rep. 551; Driggers v. State, 38 Fla. 7, 20 South. Rep. 758; Sylvester v. State, 46 Fla. 166, 35 South. Rep. 142; Hoskins v. State, 70 Fla. 186, 69 South. Rep. 701; Fine v. State, 70 Fla. 412, 70 South. Rep. 379. The charges given considered with reference to the evidence as shown in the statement referred to appear to be without harmful or prejudicial error. The judgment of the court is therefore affirmed.

Browne, C. J., and Taylor, Shackleford and Whitfield, J. J., concur.