Ables v. State, Z--16
| Decision Date | 18 October 1976 |
| Docket Number | No. Z--16,Z--16 |
| Citation | 338 So.2d 1095 |
| Parties | James Perry ABLES, Jr., Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Burke D. Chester, Daytona Beach, for appellant.
Robert L. Shevin, Atty. Gen., and Jeanne Dawes Schwartz, Asst. Atty. Gen., Tallahassee, for appellee.
Ables appeals from his conviction of murder in the first degree and a sentence of life imprisonment. The most substantial question presented is whether the trial court committed reversible error in charging the jury that it might convict the accused of premeditated murder under an indictment which charged that appellant killed the victim in perpetration of kidnapping.
The grand jury charged that Ables, 'while engaged in the perpetration of or in the attempt to perpetrate the unlawful and felonious kidnapping of the person of FREDERICK C. WEST, (did) unlawfully kill and murder the said FREDERICK C. WEST by shooting him with a pistol.' That of course was sufficient to charge murder in the first degree. Sec. 782.04(1)(a), F.S. 1975. 1 No charge was made that the unlawful killing was 'perpetrated from a premeditated design to effect the death' of the victim, which is proscribed by the same statute.
There was abundant evidence that the accused premeditatedly shot and killed the victim who was resisting kidnapping. Over objection, the trial court charged the jury on the various ways in which first degree murder might be committed under § 782.04(1)(a), stating that 'the question of premeditated design is a question of fact to be determined by the Jury from the evidence.' The court defined at length the term premeditated design and generally gave the jury to understand that it might convict the accused of first degree murder if it found the accused killed the victim from a premeditated design Or in perpetrating kidnapping. The court's charge thus potentially exposed appellant to a jury determination of his guilt on a charge not made by the indictment. That was error, for an accused is entitled to have the charge proved substantially as laid; he cannot be charged with one offense and convicted of another, even though the offenses are of the same character and carry the same penalty. See Perkins v. Mayo, 92 So.2d 641 (Fla.1957); Penny v. State, 140 Fla. 155, 191 So. 190 (1939); Art. I, § 16, Florida Constitution.
When an indictment charges that the accused killed another from a premeditated design to effect his death, it is entirely proper to instruct the jury that the charge may be proved by evidence that the accused killed the other while perpetrating one of the designated felonies. Sloan v. State, 70 Fla. 163, 69 So. 871 (1915); Knight v. State, 338 So.2d 201 (Fla.1976). It is urged by the State that the converse is also true, i.e., that on an indictment such as this the jury need not find the accused was perpetrating or attempting to perpetrate kidnapping if it is able to find the accused killed the victim with a premeditated design to effect his death. But such shuffling of offenses is not justified by the ancient principle that premeditation to murder may be implied in fact or presumed by law from the accused's perpetration of a violent felony. In such a case, the offense remains premeditated murder; only an element of it is deemed proven by evidence of the accused's felonious conduct. See 1 Russell on Crime 476 et seq. (12th ed. 1964); 1 Warren on Homicide § 74 at 324, et seq. (perm. ed. 1938); 1 Wharton's Criminal Law and Procedure § 251 (Anderson ed. 1957); Leiby v. State, 50 So.2d 529, 531--32 (Fla.1951). The same cannot be said for the converse proposition here urged by the State: that premeditation supplies an otherwise missing ingredient of the offense of murder committed while perpetrating kidnapping.
The State urges also that charging on premeditated murder is required by Brown v. State, 206 So.2d 377 (Fla.1968), § 919.14, F.S.1965, now Rule 3.490, R.Cr.P. The Rule provides that when the indictment or information charges an offense 'divided into degrees, without specifying the degree,' the jury may convict the accused of any degree of the offense...
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Knight v. Dugger
...by state courts faced with the question. State v. Pinder, 375 So.2d 836 (Fla.1979) at 839 (citing Knight ); Ables v. State, 338 So.2d 1095 (Fla. 1st DCA 1976) at 1097. The Court views this claim primarily as an issue of state law. Issues of state law are ordinarily immune from federal revie......
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Lightbourne v. State
...charging only felony murder and that charging only felony murder and proving premeditated murder is impermissible under Ables v. State, 338 So.2d 1095 (Fla. 1st DCA 1976), cert. denied, 346 So.2d 1247 (Fla.1977). The indictment herein clearly incorporates an allegation that the murder was p......
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Vasil v. State, 46654
...remains premeditated murder; only an element of it is deemed proven by evidence of the accused's felonious conduct." Ables v. State, 338 So.2d 1095, 1097 (Fla. 1st DCA 1976), Cert. denied, 346 So.2d 1247 (Fla.1977). Vasil presents a number of points on appeal, including a challenge to the c......
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State v. Jones
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