Brown v. State

• Decision Date: 22 October 1921
• Citation: 89 So. 873,82 Fla. 306
• Parties: BROWN v. STATE.
• Court: Florida Supreme Court

89 So. 873

82 Fla. 306

BROWN v. STATE.

Florida Supreme Court

October 22, 1921

Rehearing Denied Nov. 23, 1921.

Error to Circuit Court, De Soto County; George W. Whitehurst Judge.

Preston Brown was convicted as principal in the second degree of assault with intent to murder, and he brings error.

Affirmed.

Syllabus by the Court

SYLLABUS

Indictment charging one with aiding and abetting in assault to murder charges accused as principal in second degree. An indictment which charges one person with an assault upon another with intent to commit a felony and a third person as being present at the time of the commission of the felony, aiding and abetting in its commission, charges such third person also with the offense of assault with intent to commit a felony the distinction being that such third person is charged as principal in the second degree, while the principal offender is charged as principal in the first degree.

Verdict of assault with intent to kill need not state degree of murder. It is not essential that a verdict of assault with intent to commit murder shall state the degree of murder.

One charged as principal in the second degree to an assault may be convicted in first degree. A person charged as principal in the second degree to an assault with intent to commit a felony may be convicted as principal in the first degree.

Charge not misleading to defendant's detriment is not reversible error. A charge to the jury which is not so unclear in its language as to mislead the jury to the detriment of the defendant does not constitute reversible error.

One correctly named in indictment, responding to call to the bar by contraction of his Christian name, pleading and going to trial, waives such objection. A person charged with a criminal offense and correctly named in the indictment, who is called to the bar by another name, being a mere contraction of his Christian name, and responds to such call and pleads to the indictment and goes to trial upon the merits, waives whatever defense he may have interposed by plea in abatement.

COUNSEL

W. D. Bell, of Arcadia, for plaintiff in error.

Rivers H. Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty Gen., for the State.

OPINION

ELLIS J.

Preston Brown was convicted of an assault with an intent to commit murder under an indictment which charged Rufus Daniels as principal in the first degree and Preston Brown as principal in the second degree.

Omitting the formal parts of the indictment, it charges that----

'Rufus Daniels, on the 8th day of September, A. D. 1920, at and in the county of De Soto aforesaid, unlawfully and from a premeditated design to effect the death of one J. L. Dishong, in and upon him, the said J. L. Dishong, an assault did make, with a certain deadly weapon, to wit, a shotgun, which he, the said Rufus Daniels, then and there held in his hand, and him, the said J. L. Dishong, did then and there beat, bruise, wound, and ill-treat; wherefore, by virtue of the statute in such case made and provided, the said Rufus Daniels is deemed to have committed the crime of assault with intent to murder, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of Florida.

'And the grand jurors aforesaid, upon their oaths aforesaid, do further present that Preston Brown, late of the county of De Soto aforesaid, in the county and state aforesaid, was then and there at the time and place of the commission of the felony aforesaid feloniously present, and did then and there unlawfully, feloniously, counsel, aid, incite, abet, and procure the said Rufus Daniels the felony in the manner and form and by the means aforesaid then and there to do and commit. And so the grand jurors aforesaid, under their oaths aforesaid, do say that the said Rufus Daniels and Preston Brown, in the manner and form aforesaid, unlawfully, feloniously, did then and there commit an assault, with intent to commit murder on the said J. L. Dishong, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Florida.'

This indictment was sufficient to charge Preston Brown with the offense of assault upon J. L. Dishong with the intent to commit the felony of murder. Rufus Daniels was charged as principal in the first degree, but Preston Brown was charged as principal in the second degree. See Everett v. State, 33 Fla. 661, 15 So. 543; Myers v. State, 43 Fla. 500, 31 So. 275; Montague v. State, 17 Fla. 662. A principal in the second degree is one who is present aiding, inciting, and abetting at the commission of the act. The verdict in the case was as follows:

'We, the jury, find the defendant guilty as principal in the second degree of assault with intent to murder in the first degree. So say we all.'

While the verdict specified the degree of murder which the defendant intended to commit, such finding did not render the verdict invalid because assault with intent to murder in either the first or second degree is under our statute the same offense, the penalty being the same. It is not essential that a verdict of assault with intent to commit murder shall state the degree of murder. See Edwards v. State, 54 Fla. 40, 45 So. 21; Graham v. State, 72 Fla. 510, 73 So. 594.

The objection to the verdict that it finds the defendant guilty of no offense because it found him guilty as principal in the second degree of an assault with intent to commit murder in the first degree is without merit. A principal in the second...