Barrentine v. State
| Decision Date | 13 June 1916 |
| Parties | BARRENTINE et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; Cephas L. Wilson, Judge.
Walter Barrentine and another were convicted of murder in the first degree, and bring error. Affirmed.
Syllabus by the Court
Where an indictment contains two counts, the legal effect of a verdict finding the defendants guilty, as charged in the first count, is to acquit them of the offense charged in the second count.
In an indictment for murder, it is essentially necessary to set forth particularly the manner of the death and means by which it was effected, but in stating the facts which constitute the offense no technical terms are required, and an averment of the manner and means by which the deceased came to his death in concise and ordinary language, and in such a way as to enable a person of common understanding to know what was intended, is sufficient.
It is the declared policy of the Legislature, as well as of this court, to uphold indictments and informations whenever there has been a substantial compliance therein with the statutory requirements.
Where the general charge given by the court seems to have covered the law applicable to the case fully and correctly, no assignments of error being predicated upon any portion thereof, and also nine separate instructions were given at the instance of the defendants, it is not error to refuse other requested instructions, where the matters of law set forth therein have already been more fully and more clearly and correctly covered by the general charge.
The refusal of the trial court to grant a new trial for insufficiency of the evidence to sustain the verdict, or because the verdict is contrary to the evidence, will not be reversed; unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the appellate court that it is wrong and unjust.
COUNSEL W. H. Price, B. L. Solomon, and T. H. Smith, all of Marianna, and F. B. Carter, Jr., of Jacksonville, for plaintiffs in error.
T. F West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.
Walter Barrentine and Millie Barrentine seek relief here from a conviction of the crime of murder in the first degree. In their verdict, the jury having recommended the defendants to the mercy of the court, they were sentenced to confinement in the state prison at hard labor for life.
The first assignment is based upon the overruling of the motion to quash the indictment, which consists of two counts, but as the defendants were convicted under the first count, the legal effect of the verdict was to acquit them of the offense charged in the second count; therefore it becomes unnecessary to consider such second count. Salon v. State, 70 Fla. 622, 70 So. 603. The first count is as follows:
'That Walter Barrentine and Millie Barrentine of the county of Jackson and state of Florida on the 31st day of July, A. D. 1915, in the county and state aforesaid, did each unlawfully, feloniously, of his and her malice aforethought and from a premeditated design to effect the death of one Jeff Davis, alias some other name to the grand jurors unknown, make an assault upon the said Jeff Davis, alias some other name to the grand jurors unknown, with a certain deadly weapon, to wit, some kind of a gun, a more particular description of such gun being to the grand jurors unknown, which was then and there loaded with gunpowder and leaden bullets, and by him, the said Walter Barrentine, and her, the said Millie Barrentine, then and there had and held, he, the said Walter Barrentine, and she, the said Millie Barrentine, then and there unlawfully, feloniously, and each of their malice aforethought and from a premeditated design to effect the death of the said Jeff Davis, alias some other name to the grand jurors unknown, shot off and discharged at and upon him, the said Jeff Davis, alias some other name to the grand jurors unknown, thereby and by thus unlawfully, feloniously, and each of his and her malice aforethought, and from a premeditated design to effect the death of the said Jeff Davis, alias some other name to the grand jurors unknown, striking him the said Jeff Davis, alias some other name to the grand jurors unknown, with leaden bullets aforesaid unlawfully, feloniously, and of their malice aforethought and from a premeditated design to effect the death of him, the said Jeff Davis, alias some other name to the grand jurors unknown, inflicted on and upon the head and body of him, the said Jeff Davis, alias some other name to the grand jurors unknown, several mortal wounds of which said mortal wounds he, the said Jeff Davis, alias some other name to the grand jurors unknown, then and there died, and so the grand jurors aforesaid, upon their oath aforesaid, do say and state that the said Walter Barrentine and the said Millie Barrentine did in the manner and form aforesaid unlawfully, feloniously, and each of his and her malice aforethought, and from a premeditated design to effect the death of him, the said Jeff Davis, alias some other name to the grand jurors unknown, kill and murder the said Jeff Davis, alias some other name to the grand jurors unknown.'
It seems to unnecessary to copy the grounds of the motion to quash. It is contended here that this count is fatally defective for the reason that it fails to allege that the gun which the two defendants are alleged to have had and held in their hands was shot by them, or either of them, at the person of the deceased. In other words, that there is no allegation that such gun was discharged by any person at or against the body of the deceased, or that either of the defendants shot such gun. In support of this assignment, the defendants cite Wharton on Homicide (3d Ed.) §§ 558, 566, and 1 McClain on Criminal Law, § 378. We have examined these authorities and are of the opinion that they fail to support this contention of the defendants. We have also examined some of the cases which these authors cite in the notes and they strengthen us in this conclusion. As is said in section 566 of Wharton on Homicide:
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