Barber v. State

• Decision Date: 31 July 1906
• Citation: 42 So. 86,52 Fla. 5
• Parties: BARBER v. STATE.
• Court: Florida Supreme Court

42 So. 86

52 Fla. 5

BARBER v. STATE.

Florida Supreme Court, Division A.

July 31, 1906

Rehearing Denied Oct. 16, 1906.

Error to Circuit Court, Osceola County; Minor S. Jones, Judge.

Joseph A. Barber was convicted of an assault with intent to murder and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

It is the policy of this court, as it evidently was of the Legislature in enacting sections 2892 and 2893 of the Revised Statutes of 1892, to uphold indictments and informations whenever there has been a substantial compliance with law therein.

Defects in indictments and informations should be called to the attention of the trial court by a motion to quash or a demurrer, so that the defect, if any, may be corrected by the filing of another indictment or information. Neither the common law nor our statutes favor the policy of the defendant in waiting until the last stage of the cause and attacking such defects by a motion in arrest of judgment, the granting of which would have the effect of unraveling the whole proceedings.

The gist of the offense under section 2403 of the Revised Statutes of 1892, charging an assault with intent to murder consists in the intent with which the assault is made.

An indictment charging that an assault was made by the accused 'unlawfully, feloniously, and from a premeditated design to effect the death of the' person assaulted, and that the accused 'did unlawfully, feloniously, and from a premediated design to effect the death of the' person assaulted, 'discharge and shoot off at, against, and upon the' said person assaulted, 'thereby and by thus striking the' said person assaulted, 'with intent him * * * unlawfully, feloniously, and from a premeditated design to effect the death of the' said person assaulted 'to kill and murder,' sufficiently alleges that the assault was made with intent to commit a felony.

COUNSEL

Bryan & Bryan, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

SHACKLEFORD C.J.

At the fall term, 1904, of the circuit court for Osceola county, an indictment was returned against the plaintiff in error, which, omitting the formal parts, is as follows: 'The grand jurors of the state of Florida, inquiring in and for the body of the county of Osceola, upon their oaths do present that Joseph A. Barber, late of the county of Osceola aforesaid, in the circuit and state aforesaid, laborer, on the 26th day of June, in the year of our Lord one thousand nine hundred and four, with force and arms, at and in the county of Osceola aforesaid, in and upon one Thomas A. Hughey, unlawfully, feloniously, and from a premeditated design to effect the death of the said Thomas A. Hughey, an assault did make, and a certain gun, the same being a deadly weapon, which was then and there loaded with gunpowder and leaden balls, and by the said Joseph A. Barber had and held in his hands, he, the said Joseph A. Barber, did unlawfully, feloniously, and from a premeditated design to effect the death of the said Thomas A. Hughey, discharge and shoot off at, against, and upon the said Thomas A. Hughey, thereby and by thus striking the said Thomas A. Hughey with the said leaden balls in and upon his leg, inflicting in and upon the said Thomas A. Hughey one grievous wound, with intent him, the said Thomas A. Hughey, unlawfully, feloniously, and from a premeditated design to effect the death of the said Thomas A. Hughey, to kill and murder, whereby and by force of the statute in such case made and provided the said Joseph A. Barber is deemed to have committed an assault with intent to commit a felony punishable by death, to wit, murder in the first degree--against the form of the statute in such case made and provided, to the evil example of all others in the like case offending, and against the peace and dignity of the state of Florida.'

A trial was had at the fall term, 1905, which resulted in the following verdict being returned against the defendant: 'We, the jury, find the defendant guilty as charged in the indictment, asking the mercy of the court. J. R. Bronson, Foreman.'

Upon the rendition of this verdict the defendant filed the following motion in arrest of judgment:

'Now comes the defendant, Joseph A. Barber, in his proper person and by Bryan & Bryan, his attorneys, and moves the court in arrest of judgment in the above-entitled cause on the following grounds, to wit:

'(1) That the indictment against the defendant in the above-entitled cause is insufficient in law, form, and substance upon which to base a judgment.

'(2) That the indictment does not charge in sufficient language the offense of assault with intent to commit murder, or any other felony.

'(3) That the indictment does not charge an assault with intent to commit a felony.

'(4) That the indictment is too vague, indefinite, and defective in its language whereby an intent to commit a felony is sought to be charged, and does not state when or where such intent was had.

'(5) That the allegations in the indictment do not charge that the assault was made in pursuance of any unlawful intent, or accompanied by any unlawful intent.

'(6) That the verdict of the jury herein rendered is too vague, indefinite, and uncertain to advise the court of what offense the defendant is thereby found guilty.

'Wherefore it is prayed that the verdict herein rendered be set aside and judgment thereon arrested.'

This motion was denied, and the defendant was sentenced to confinement at hard labor in the state penitentiary for the term of five years.

From this judgment and sentence the defendant seeks relief by writ of error returnable to the present term of this court. The sole error assigned is based upon the denial of the motion in arrest of judgment. The last ground of the motion, being the sixth, is expressly abandoned.

The indictment was framed under section 2403 of the Revised Statutes of 1892, which is as follows:

'2403. What assaults felonies.--Whoever commits an assault on another, with intent to commit any felony punishable with death or imprisonment for life, shall be punishable by imprisonment in the state prison not exceeding twenty years. An assault with intent to commit any other felony shall be punished to an extent not exceeding one-half the punishment which could have been inflicted had the crime been committed.'

The point presented to us for decision is whether or not the indictment in question sufficiently complies with the quoted section to withstand the attack made. In deciding this question, we must bear in mind our statutes of jeofails, if they may be so termed, which constitute sections 2892 and 2893 of the Revised Statutes of 1892, and are as follows:

'2892. Indictment substantially charging offense good.--Every indictment shall be deemed and adjudged good which charges the crime substantially in the language of the statute prohibiting the crime or prescribing the punishment, if any such there be, or if at common law, so plainly that the nature of the offense charged may be easily understood by the jury.

'2893. Indictment not to be quashed unless it would mislead accused.--No indictment shall be quashed or judgment be arrested or new trial be granted on account of any defect in the form of the indictment, or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.'

Section 2893 was enacted originally in 1861, forming section 1 of chapter 1107, and was brought forward, with some slight modifications, while section 2892 makes its appearance for the first time in the Revised Statutes. Section 2893 has been frequently construed and referred to by this court. See Green v. State, 17 Fla. 669; Dansey v State, 23 Fla. 316, text 324, 2 So. 692; Kennedy v. State, 31 Fla. 428, 12 So. 858; Michael v. State, 40 Fla. 265, 23 So. 944; Eggart v. State, 40 Fla. 527, text 534, 25 So. 144; Shiver v. State, 41 Fla. 630, text 635, 27 So. 36; King v. State, 42 Fla. 260, text 266, 28 So. 206; Long v. State, 42 Fla. 509, text 516, 28 So. 775; Dickens v. State (Fla.) 38 So. 909; Caesar v. State (Fla.) 39 So. 470; Johnson v. State (Fla.) 40 So. 678. An examination of these cited cases...