Blount v. State

• Decision Date: 15 August 1892
• Citation: 11 So. 547,30 Fla. 287
• Parties: BLOUNT v. STATE.
• Court: Florida Supreme Court

11 So. 547

30 Fla. 287

BLOUNT v. STATE.

Florida Supreme Court

August 15, 1892

Error to circuit court, Hillsborough county; H. L. MITCHELL, Judge.

Syllabus by the Court

SYLLABUS

1. It is the duty of the trial court to instruct the jury on the law applicable to the facts proven during the trial of a case, and a refusal to do so when asked will be error; but it is the settled practice in this state that, if a party wishes to avail himself of the omission of the court to charge the jury on any point in the case, he must ask the court to give the instruction desired; otherwise he will not be permitted to assign the omission as error.

2. A juror who served upon the jury that convicted an accused at a term of court held in December, A. D. 1891, had been summoned, by virtue of a special venire, to complete the petit jury list, and his name appeared upon the panel of petit jurors for the spring term of said court held in March of the same year. An objection was made in arrest of judgment that said juror was disqualified by reason of the provision in section 3, c. 3010, Laws Fla., (McClel. Dig. p. 622, s 8,) to the effect that 'no person shall be drawn to serve on a grand or petit jury more than once during the same year.' Held, that said provision does not create a disqualification, but simply provides an exemption from jury duty for more than one term of court each year.

3. Assignments of error submitted without argument may be treated as abandoned.

4. Where the record fails to show that the trial judge asked a prisoner, before pronouncing sentence upon him, if he had anything to say why the sentence of the law should not be passed upon him, it is not ground for setting aside the judgment, where the conviction is not of a capital offense.

COUNSEL Wall & Knight and Wilson & Wilson, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

The facts fully appear in the following statement by MABRY, J.:

The plaintiff in error, Huararcher B. Blount, was indicted in June, A. D. 1891, in the circuit court of the sixth judicial circuit for Polk county, for the murder of Robert L. Parker. On the application of the accused the venue in the cause was changed to Hillsborough county, in said circuit, and at a term of the circuit court for the latter county, held in December, A. D. 1891, said accused, upon arraignment and plea of not guilty, was tried and convicted of murder in the first degree, and recommended by the jury to the mercy of the court. After motions in arrest of judgment and for new trial were overruled, the accused was, by judgment of the court, sentenced to the penitentiary for life, and he brings the case here by writ of error for review. Affirmed.

The grounds of the motion in arrest of judgment are: 'First because the court erred in omitting to charge the jury that it was competent for them to convict the defendant of some lesser degree of felonious homicide other than that charged in the indictment; second, because the court erred in omitting to charge the jury as to the lesser degrees of murder, and the different degrees of manslaughter; third because the court erred in confining the jury in his charge to a conviction of murder in the first degree.' The grounds in the motion for a new trial are 'First, because the verdict is contrary to law; second because the verdict is contrary to the evidence; third because the jury failed to give the defendant the benefit of every reasonable doubt arising from the evidence; fourth, because T. B. Smith, one of the jurors who tried said cause, was not a qualified juror for the trial of said cause, in this: that the said T. B. Smith was duly summoned to serve, and did serve, on the regular panel of petit jurors for the spring term of this court for the year 1891, which will more fully appear by reference to the affidavit of the defendant and a certified transcript of a portion of the minutes of the court for the said spring term, 1891, filed herewith, and made a part of this motion;fifth, because of the newly-discovered evidence of F. F. Beville and W. M. McDowell, as shown by the affidavits of F. F. Beville and H. B. Blount, herewith filed, and made a part of this motion.'

No instructions were asked on behalf of the accused, and the only exceptions taken to the charge of the court are those contained in the motion in arrest of judgment.

The errors assigned are: 'First, the court erred in omitting to charge the jury that it was competent for them to convict the defendant of some degree of felonious homicide other than that charged in the indictment; second, the court erred in denying defendant's motion for a new trial; third, the court erred in denying the defendant's motion in arrest of judgment; fourth, the record does not show that the accused was asked by the court if he had anything to say why the sentence of the law should not be passed upon him, prior to passing said sentence.'

The record recites the following in reference to the sentence passed by the court: 'The State of Florida vs. Huararcher B. Blount. The defendant in this cause being at the bar of the court, the following sentence is pronounced: 'The sentence of the law is that you be imprisoned by confinement in the state penitentiary at hard labor for the term of your natural life.'

MABRY, J., (after stating the facts as above.)

The first and third assignments of error may be considered together. The third assignment is that the court erred in denying defendant's motion in arrest of judgment, and the grounds of this motion are: 'First, the court erred in omitting to charge the jury that it was competent for them to convict the defendant of some lesser degree of felonious homicide other than that charged in the indictment; second, the court erred in omitting to charge the jury as to the lesser degrees of murder, and the different degrees of manslaughter; third, the court erred in confining the jury in his charge to a conviction of murder in the first degree.' The first assignment of error is the same as the first ground of the motion in arrest of judgment. The plaintiff in error did not ask the court to charge the jury on the lesser degrees of murder and the different degrees of manslaughter; in fact, did not request the court to give any instructions whatever. The court instructed the jury on the law applicable to murder in the first degree, and as to the right of self-defense. The first section of the act of 1877 (chapter 2096, Laws Fla.) provides that in the trial of criminal cases in the circuit courts of this state 'it shall be the duty of the judge presiding on such trial to charge the jury only upon the law of the case,--that is, upon some point or points of law, or exceptions to evidence, arising in the trial of said cause; and such charge shall be wholly in writing. If either of the parties, or their attorneys, present to the judge instructions in writing on the point or points of law or exceptions taken arising on the trial, it shall be the duty of the judge to declare in writing to the jury his ruling thereupon as presented, and pronounce the same to the jury as given or refused.' The second section provides that, in cases not punished capitally, the judge may charge orally, unless requested by the parties or their attorneys to charge in writing, which request must be in writing, and made before the evidence in the case is closed.

Counsel for plaintiff in error contend that it is the duty of the trial judge, whether requested to do so or not, to instruct the jury as to all the law applicable to the facts which have been proven, and a failure to so instruct is reversible error. It is clearly the duty of the court to instruct the jury on the law of the case,--that is, upon the law applicable to the facts proven in the case; and a refusal to give such instructions when asked would, of course, be error. But under our practice it has been settled by adjudications that, if a party wishes to avail himself of the omission of the court to charge the jury on any point of the case, he must ask the court to give the instruction desired; otherwise he will not be permitted to assign it as error. In Duggan v. State, 9 Fla. 516, the point was made that the record did not show that the judge filed the charge which he gave to the jury as provided by law. The statute provided that charges to juries in criminal cases should be reduced to writing, and filed in the case, and should be exclusively on points of law. Chapter 138, § 8, Laws 1848. It was held that the record did not show that the trial judge had instructed the jury at all, and hence there was no error in not filing instructions. This was a capital case, and the judgment was affirmed, although, as held by the court, no instructions at all were given. A year before the Duggan Case was decided, it was held in Cato v. State, 9 Fla. 163, that, 'if the court assumes to charge the jury, it ought to charge on the whole law, but, if a party desires to avail himself of any failure or omission in this respect, he must call the particular point to the attention of the court, otherwise he will not be permitted to assign the omission for error. In the case of Long v. State, 11 Fla. 295, (decided in 1866 or 1867,) it was held that the judge may omit to charge the jury, without error, when no instructions are specially requested in writing, but when he charges the jury he must confine himself to the law applicable to the case, and reduce his charge to writing, before it is delivered. These decisions were made while the statute of 1848 (chapter 138) was in force; but since the enactment of the statute of 1877, supra, this court has announced the same rule.

In Irvin v. State, 19 Fla. 872, the fourth assignment of error was that the...