145 So. 2d 561 | Fla. Dist. Ct. App. | 1962
This is an appeal from a conviction of ■second degree murder and sentence of 30 years.
The appellant presents 2 points on appeal, the first going into the admission into evidence of a scale model of the death weapon, which had already been admitted without objection. It does not appear that the introduction of the model misled or confused the jury, and same was appropriately identified as a facsimile by the state’s expert witness. No error was demonstrated in permitting it into evidence. Flowers v. State, 69 Fla. 620, 68 So. 754, L.R.A. 1915E, 848; Landrum v. State, 79 Fla. 189, 84 So. 535; State v. Roy, 220 La. 1017, 58 So.2d 323; 23A C.J.S. Criminal Law § 1091. The second point raised by the appellant is the failure to grant a mistrial because of alleged improper comment by the court. It is pointed out that the motion for mistrial was not made until a day subsequent to the complained of activity of the trial judge and, therefore, same not having been made at the moment of the occasion complained of it was untimely. Upchurch v. Mizell, 50 Fla. 456, 40 So. 29; Mendez v. State, Fla.1949, 39 So.2d 468. Further, the motion was made in the alternative for a mistrial or an appropriate instruction in reference to the court’s comments. The appellant’s counsel prepared such an instruction, which was given verbatim by the court, so it appears that the appellant got the alternate relief sought in his motion for mistrial. Therefore, the conviction and sentence is hereby affirmed.
Affirmed.