Blackmon v. State

• Decision Date: 02 August 1924
• Citation: 101 So. 319,88 Fla. 188
• Parties: BLACKMON v. STATE.
• Court: Florida Supreme Court

101 So. 319

88 Fla. 188

BLACKMON v. STATE.

Florida Supreme Court, Division A.

August 2, 1924

Error to Circuit Court, Suwannee County; M. F. Horne, Judge.

Henry Blackmon was convicted of murder in the first degree, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

No conviction for lesser offense on indictment for murder in first degree found more than two years after homicide. Where an indictment for murder in the first degree is found more than two years after the homicide occurred, there can be no conviction of the accused for any offense less than murder in the first degree, and a charge so instructing the jury is not erroneous.

Evidence examined and found sufficient to sustain the verdict.

COUNSEL

J. L. Blackwell, of Live Oak, for plaintiff in error.

Rivers Buford, Atty. Gen., and J. B. Gaines, Asst. Atty. Gen., for the State.

OPINION

BROWNE J.

The plaintiff in error was convicted of murder in the first degree, with a recommendation to mercy, on an indictment found on July 4, 1923, that charged the homicide to have been committed on the 28th day of March, 1921.

The only error assigned is that the court erred in overruling the defendant's motion for a new trial, the third and fourth grounds of which are that the court erred in giving these instructions to the jury:

'The crime charged by the indictment in this case is alleged to have been committed on March 28, 1921, and the indictment charging the defendants with murder was presented to the court and filed on the 4th day of July, A. D. 1923, and for that reason you are charged that the defendant, Henry Blackmon, cannot be found guilty of murder in the second degree, murder in the third degree, nor of manslaughter, and you are instructed that as to the defendant, Henry Blackmon, now in your charge, there is only one of two verdicts that you may render, one that is guilty of murder in the first degree, with a recommendation, and the other that he is not guilty.

'If you find from the evidence in the case, beyond a reasonable doubt, that the defendant killed John Powell, or assisted one of the other defendants to kill him, at the time and place and by the means alleged in the indictment, then you must find whether or not such killing or murder in the first degree, and you must state in your verdict of what offense you find the defendant guilty.'

These charges must be considered in connection with and in...