58 Fla. 135 | Fla. | 1909
The plaintiff in error was convicted of an assault with intent to murder in the second degree.
As the record does not show the entire charge given, we cannot say that the trial court erred in refusing to give the specific charge requested by the defendant. Ford v. Ford, 110 Ind. 89, 10 N. E. Rep. 618; Parson v. Baxter, 13 Fla. 580; Stewart v. Mills, 18 Fla. 57; Youngglove v. Knox, 11 Fla. 743, 33 South. Rep. 127; Finlayson v. State,
When the special instruction mentioned above was refused, the court merely indorsed the same, “Refused, exception noted,” dating and signing it, but did not “declare in writing to the jury his ruling thereupon as presented,” and did not “pronounce the same to the jury as given or refused,” as he was required to do by the provisions of section 1498 of the General Statutes of 1906. It does not appear that the defendant reserved an exception to this proceeding at the time, but the omission of the court to comply with the statutory requirement already mentioned was made the ground of a motion for a new trial, the motion was overruled and an exception thereto was duly taken and noted in the record. As this omission of the court was not excepted to promptly, at least before the rendition of the verdict, such exception being taken for the first time after verdict in the motion for new trial, we will have to adjudge the error to have been waived. Morrison v. State, 42 Fla. 149, 28 South. Rep. 97; Hubbard v. State, 37 Fla. 156, 20 South. Rep. 235; Southern Express Co. v. VanMeter, 17 Fla. 783; Potsdamer v. State, Id. 895; Weightnovel v. State, 46 Fla. 1, 35 South. Rep. 856; Jones v. State, 18 Fla. 889; Coker v. Hayes, 16 Fla. 368; Baker v. State, 17 Fla. 406; Gibson v. State, 26 Fla. 109, 7 South. Rep. 376; Baker v. Chatfield, 23 Fla. 540, 2 South. Rep. 822.
In so far as any expressions in Fridenburg v. Robinson, 14 Fla. 130, are in conflict with the views here expressed the same are disapproved.
The other assignments relate to the insufficiency of the evidence to support the verdict. While there is some con
The judgment is affirmed.