Bradham v. State

• Decision Date: 03 October 1899
• Citation: 41 Fla. 541,26 So. 730
• Parties: BRADHAM v. STATE.
• Court: Florida Supreme Court

26 So. 730

41 Fla. 541

BRADHAM v. STATE.

Florida Supreme Court

October 3, 1899

Error to circuit court, Wakulla county; John W. Malone, Judge.

Anthony Bradham was convicted of murder, and brings error. Reversed.

Syllabus by the Court

SYLLABUS

1. Where a defendant on a first trial has been regularly arraigned, and pleaded not guilty, it is not necessary, upon a retrial of the same defendant upon the same indictment, to rearraign him, or for him to plead anew.

2. While defendants upon trial for crime should be protected in the proper exercise of their right of peremptory challenge yet such right must be seasonably exercised before the jurors are sworn in chief; otherwise, it is waived.

3. Where a single exception is made to embrace the refusals of the trial judge to give two or more requested instructions containing distinct propositions of law, the appellate court will not sustain such an exception if it finds any one of the refused instructions to have been properly refused.

4. In an indictment for murder, the substance of the charge is that the prisoner unlawfully and with a premeditated design killed the deceased by means of shooting, poisoning, cutting, blows or bruises, or the like. It is therefore sufficient if the proof agree with the allegation in its substance and general character, without precise conformity in every particular. In other words, an indictment describing a thing by its generic term is supported by proof of a species which is clearly comprehended within such description. Under this rule, where the indictment alleges the death to have been caused by shooting, and describes the mortal wound to have been of the breadth of one-quarter of an inch and of the depth of four inches, the proof is sufficient if it shows that death resulted from numerous wounds inflicted by shot of small size fired from a gun, but none of which were of the dimensions alleged in the indictment.

5. It is improper for counsel to add, by his own statement in argument, a material fact, without the authority of evidence to the testimony as submitted to the jury. A statement of such a fact by counsel, not authorized or proven by the evidence, should not be allowed to go to the jury. The judge should stop him at once, and if he fails to do so when requested, and the impropriety is great, and exception is duly taken, it is ground for a new trial.

COUNSEL

R. Don McLeod and Nat R. Walker, for plaintiff in error.

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

OPINION

TAYLOR C.J.

The plaintiff in error was indicted for murder in the first degree at the fall term, 1898, of the circuit court for Wakulla county, and at the spring term of said court, 1899, was tried, and convicted of murder in the second degree, and sentenced to life imprisonment, and from such judgment comes here by writ of error.

It is assigned as error that there was no legal arraignment of the defendant at the trial. The record shows that at a former trial of the defendant upon the same indictment, that resulted in a mistrial, the defendant was regularly arraigned, and pleaded not guilty. This court, in the case of Reynolds v. State, 34 Fla. 175, 16 So. 78, has settled this question; holding that upon a retrial of the defendant upon the same indictment, upon which there were a former arraignment, plea, and trial, it was unnecessary to rearraign the defendant, or for him to plead anew.

The record shows that after 12 jurors had been tendered by the state, and accepted by the defendant, and sworn in chief, the defendant peremptorily challenged one of the jurors thus accepted and sworn, but, upon objection by the state on the ground that such challenge came too late, it was disallowed. This ruling is assigned as error. There was no error here. While defendants upon trial for crime should be protected in the proper exercise of their right of peremptory challenge, yet such right must be seasonably exercised before the jurors are sworn in chief; otherwise, it is waived. O'Connor v. State, 9 Fla. 215. And such was the rule at the common law. Wharton's Case, Yel. 24; Vicars v. Langham, Hob. 235; Tyndal's Case, Cro. Car. 291.

At the trial the defendant requested five instructions to be given to the jury. The court gave one of them, but refused the other four; and to such refusal the defendant took but a single exception, including therein the refusal to give the four requested instructions. The rule is settled in this court that where a single exception is made to embrace the refusal of the trial judge to give two or more requested instructions, containing distinct propositions of law, the appellate court will not adjudge such refusal to be error, if it finds any one of the refused instructions to have been properly refused. Oliver v. State, 38 Fla 46, 20 So. 803; Eggart v. State, 40 Fla. ----, 25 So. 144. Under this rule, there was no error in the refusal of the requested instructions,...