75 Fla. 229 | Fla. | 1918
This writ of error was taken to a conviction for' receiving stolen goods knowing them to have been stolen. The only contentions here are that the court should have directed a verdict for the defendant ; that improper testimony was admitted; that the evidence does not support the verdict and that the prosecuting attorney abused his pritilege in addressing the jury.
The transcript bropght. here did not contain the entries of the record proper showing the arrangement of the accused or the judgment and sentence of the court; but certified copies of such entries have since been sent to the Court by the clerk of the trial court.
A defendant in a criminal case is not entitled as of right to an instruction to the jury to return a verdict of not guilty on the ground that the evidence would not support a verdict of guilty, the statute regulating directed verdicts being confined to civil cases. Bennett v. State, 68 Fla. 494, 67 South. Rep. 125; Hull v. Burr, 61 Fla. 32, 55 South. Rep. 852; Ryan v. State, 60 Fla. 25, 53 South. Rep. 448; Maloy v. State, 52 Fla. 101, 41 South. Rep. 791; Leaptrot v. State, 51 Fla. 57, 40 South. Rep. 616; Wilson v. State, 47 Fla. 118, 36 South. Rep. 580; McCray v. State, 45 Fla. 80, 34 South. Rep. 5;
It appears that the property ($65.00 in money) belonged to. one Smith who had it in a trunk in his house to which his daughter a married. woman living with her father had access. The daughter Elizabeth Smith or Butler a witness for the State testified that “John Wells came to see me and we talked on the porch. It was about ten o’clock at night. Wells told me to search and see if I could not find some money and. we could take the money and get off and' get married. Question. How could you marry Wells when you were already a married woman?. Answer.,He was going to buy me a divorce. I wanted and was willing to go off with him. I went to my father’s trunk and got the $65.00 and gave it to Wells. He left and I didn’t see him any more until I was tried at the Police Court. Cross. Who did you first tell this story to? Answer Mr. Bishop. Question. Why did you tell him? Answer. He said he would see that Papa wouldn’t whip me and it would be better, if I didn’t I would be put in jail. Whereupon the defendants attorney moved the Court then and there to instruct the jury to disregard the testimony as the same was a confession and was wrongfully obtained, to which request Court declined to do so and thereupon the defendant then and there excepted to said ruling which exceptions the Court duly noted. Elizabeth Butler being cross examined by defendant’s attorney Eobert E. Taylor testified as follows: Question. Did you not tell Wells that you had $65.00 and would give it to him if he would go with you? Answer. He told me to search for the money. I was willing to go off’ with him. Question. Did any one see you give the money to Wells? Answer. No. sir. It was. dark, he
In his argument to the jury the county solicitor said “That only one verdict of guilty could be given by six honest men.” An exception to the remark was noted. Even if the remark would cause a reversal of the judgment upon proper foundation being laid, there is nothing to show that the court was asked to do anything except to note an exception to the remark. See Lampkin v. State, 70 Fla. 448; 70 South. Rep. 440.
It cannot be said there is no. substantial evidence to support the verdict or that it appears the jury were not governed by the evidence in rendering the verdict.
The credibility .of conflicting testimony was determined by the jury and the evidence is not so prepondering against the verdict approved by the trial court as to require a reversal of the judgment.
Affirmed.