Bailey v. State, 38143
| Decision Date | 02 July 1969 |
| Docket Number | No. 38143,38143 |
| Parties | Francis D. BAILEY, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Harry W. Fogle, of Fogle, Wilson & Shingler, St. Petersburg, for appellant.
Earl Faircloth, Atty. Gen., and Horace A. Knowlton, III, Asst. Atty. Gen., for appellee.
This is an appeal from the Circuit Court of Pinellas County, having been transferred to this Court from the District Court of Appeal, Second District.
In the early morning hours of August 17, 1967, the defendant entered the home of his estranged wife, finding her in the company of Pinkston. The defendant shot both Pinkston and Mrs. Bailey. Although shot several times in the head and body, Pinkston survived to testify against the defendant. Mrs. Bailey, however, died as a result of the gunshot wounds.
An indictment was returned charging defendant with murder in the first degree and an information was filed charging him with assault with intent to commit murder in the first degree. A plea of not guilty was entered in each case and the two cases were consolidated. The jury found the defendant guilty of murder in the second degree and guilty of assault with intent to commit murder in the second degree. Motions for new trial were denied and defendant appealed to the District Court of Appeal. Upon the State's motion the cause was transferred by the District Court of Appeal to this Court.
In his motions for new trial the defendant contended that the trial court erred in refusing to give instructions on the crime of murder in the third degree and the crime of assault with intent to commit murder in the third degree. The defendant's attorney orally requested the Court to give these charges, but the Court informed him that under the allegations of the charges in the respective cases the defendant could not be found guilty of murder in the third degree or assault with intent to commit murder in the third degree and the Court would not give the requested charge. In view of this announced intention of the Court the defendant's counsel was not required to submit any written request for the charge or to further pursue his oral request for the giving of the charge. The attorney was not required to pursue a completely useless course when the judge had announced in advance that it would be fruitless. Birge v. State, 92 So.2d 819 (Fla.1957); Brown v. State, 206 So.2d 377 (Fla.1968).
The trial judge in his order denying the motion for new trial held that Fla.Stat., § 919.14, F.S.A., in requiring instructions on degrees less than the crime charged, would be unconstitutional in permitting an accused to be found guilty of a crime the elements of which were not charged or alleged in the indictment or information under which he went to trial. The Court stated that this violated the constitutional requirement of due process guaranteed by Section 11 of the Bill of Rights, Florida Constitution, F.S.A. and the Sixth Amendment to the U.S. Constitution. The trial judge, therefore, construed controlling provisions of the Florida and Federal Constitutions. We will retain jurisdiction.
The State argues that Fla.Stat., § 919.14, F.S.A., authorizing the jury to find the defendant guilty of the degree charged or of any lesser degree, is not applicable in this case because there was no evidence to sustain a conviction of murder in the third degree. This question was answered in Brown v. State, 206 So.2d 377 (Fla.1968) when the Court said:
(Emphasis supplied.)
Under our system of jurisprudence, the jury had the right to convict defendant of any lesser degree of the crime charged, and it made no difference whether the elements of this degree of the crime were included in the specific allegations of the indictment or information. Such a verdict convicting a defendant of a lesser degree even in the absence of proof is sometimes referred to as a 'jury pardon' of the higher degree of crime. The effect of the refusal of the trial judge to give any instruction on third degree murder or assault with intent to commit third degree murder deprived defendant of the statutory right to have the jury consider such lesser degree.
In Brown v. State, supra, we specifically held as follows:
'When a crime is divisible into degrees, the trial judge, under § 919.14, should instruct on all degrees including the crime charged and all degrees less than the crime charged.'
The lower court committed error when it refused the request of the defendant for an instruction on murder in the third degree.
Even though this may be error, the State contends that the conviction of assault with intent to commit murder in the second degree should stand because an instruction on assault with intent to commit murder in the third degree could not be given by the trial court as there is no such crime recognized by our Court.
Fla.Stat., § 784.06 (F.S.A.), punishes 'an assault with intent to commit' a felony. Murder in the third degree is a felony.
Fla.Stat., § 782.04 (F.S.A.), provides:
'The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the...
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