28 Fla. 339 | Fla. | 1891
On the 7th day of August, A. D. 1990, during the summer term of the Circuit Court of the Third Judicial Circuit of Florida, for'Suwamnee county, the plaintiff in error was indicted for an assault with intent to murder one Bob Davis. The indictment charges that the plaintiff in error, “on the 4th day of August, A. D. 1890, at and in the county of Suwannee, circuit and
The errors assigned here are : 1. The court erred in overruling defendant’s motion to remand said cause to a justice of the peace for trial, upon the finding of the jury herein. 2. The court erred in overruling defendant’s motion in arrest of judgment. 3. The court erred in rendering and passing judgment upon and against defendant herein.
The testimony upon which the verdict was rendered is not before us, nor are there any other questions presented in the record except those arising upon the motions to remand to the justice of the peace, and in arrest of judgment. A consideration of the motion in arrest of judgment will dispose of the case. The sec
It is contended by counsel for plaintiff in error that the court had no jurisdiction to proceed further in the case when the jury returned a verdict of guilty against defendant for assault and battery. The original jurisdiction of circuit courts extends to all criminal cases not cognizable by inferior courts. Article V, sec. 11, Constitution of 1885. Justices of the Peace shall have jurisdiction in such criminal cases, except felonies, as may be prescribed by lawn Article V, sec. 22, Constitution of 1885. By statute they are empovrered to hear and determine cases of assault, or assault and battery, not charged to have been committed riotously, or upon any officer, or with intent to commit any other offense. McClellan’s Digest, p. 662, sec. 1. It is further provided, however, ‘ ‘that where any person is tried in any Circuit Court of this State for an offense of which such Circuit Court has original jurisdiction, and such person is found to be guilty of any lesser offense included in the offense for which indictment or information is filed against him and for which he is being tried, and is not found guilty of the greater offense,
The fourth ground of the motion in arrest of judgment is, that the crime of assault and battery is not-included in the charge of assault with intent to murder. Counsel for plaintiff in error contends that am assault with intent to murder is a specific offense of an attempt to commit a crime, and that no substantive-offense can be carved out of it. If. the position assumed is that a charge of an assault with attempt to* commit some substantive crime includes no lesser offense, it is not tenable. An assault with intent to-murder includes a simple assault. Montgomery vs. State, 4 Texas Ct. App., 140; Givens vs. State, 6 Texas,
The judgment is affirmed.