Brown v. State

Decision Date05 March 1943
Citation152 Fla. 508,12 So.2d 292
PartiesBROWN v. STATE.
CourtFlorida Supreme Court

Appeal from Circuit Court, Broward County; George W Tedder, judge.

Elmore Cohen, of West Palm Beach, for appellant.

J. Tom Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen for appellee.

THOMAS, Justice.

Appellant ran his victim down and killed her with a knife in circumstances that would have justified a verdict of guilty of murder in the first degree. He cannot, therefore, complain of his conviction of murder in the second degree.

He questions compliance by the court with the provisions of Section 4368 C.G.L.1927, Section 54.22, Florida Statutes 1941, relating to the manner in which a jury may be required further to consider a case after reporting to the court an inability to agree.

The statute comes into play when, following the court's instructions on the controlling law and the jury's retirement to consider the case, they return to the courtroom to announce a failure to accord. It is within the court's province, under the cited statute, then to determine whether there has been 'due and thorough deliberation upon [the] clause.' Even if this question be decided in the affirmative it is within the court's power to 'explain to them anew the law applicable to the case, and * * * send them out again for further deliberation.' We interrupt at this point to describe the first visit to the courtroom of the jury impaneled in the instant case. A request was made for information about some of the testimony--it was denied--and the jury again retired to the jury room. Adverting to the statute, it is provided there that 'if they shall return a second time without having agreed on a verdict, they shall not be sent out again without their own consent, unless they shall ask from the court some further explanation of the law.' We interpret this language to mean that the first and second appearances contemplated in the law are those made by a jury of its own volition for the purpose of reporting to the court a failure to reach a verdict. In this case the jury first reported to learn about the evidence introduced or to hear additional testimony. This indicated that they had not duly and thoroughly considered the case but were in search of further information which would guide them in arriving at a finding. The record reveals that the second and third appearances were made in response to requests by the court that the jury enter the courtroom. It is true that in a colloquy between the judge and one of the jurors it developed that they were having difficulty in agreeing, but the primary purpose of the judge in recalling the jury was to learn whether the court could aid them 'in regard to the law of the case.' He was authorized to do this under Section 221, Criminal Procedure Act, Section 919.06, Foorida Statutes, 1941. The record is silent about a return to the court for the express purpose of announcing disagreement; about any request from the jury for additional instructions; and about their return to the jury room 'without their consent.' We have found no impropriety in the court's action and we have the view that the occurrences we have outlined show plainly that there was no violation of the provisions of the statute.

The jury first retired shortly before four o'clock in the afternoon and the procedure we have detailed occurred between that time and eight-thirty in the evening when a verdict was delivered. The appellant charges that error was committed when the judge required the jury to return finally to...

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10 cases
  • Louette v. State
    • United States
    • Florida Supreme Court
    • March 5, 1943
    ... ... 496] Appeal from Criminal Court, Hillsborough County; John R ... Himes, judge ... [152 Fla ... 497] Whitaker Brothers, of Tampa, for appellants ... J. Tom ... Watson, Atty. Gen., and Woodrow M. Melvin, Asst. Atty. Gen., ... for appellee ... BROWN, Justice ... An information was ... filed in the trial court against Don Louette, John Stofer, ... Jr., and Charlie William Pittman, alias 'Biscuit,' ... charging the three defendants in the first count with ... breaking and entering a certain store-house located in the ... ...
  • Pedrera v. State, 79-1201
    • United States
    • Florida District Court of Appeals
    • April 28, 1981
    ...R. Jacob, Asst. Atty. Gen., for appellee. Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ. PER CURIAM. Affirmed. Brown v. State, 152 Fla. 508, 12 So.2d 292 (1943); Shea v. State, 167 So.2d 767 (Fla. 3d DCA 1964); Bertone v. State, 224 So.2d 400 (Fla. 3d DCA 1969); Matire v. State, 232 S......
  • McAllister Hotel, Inc. v. Porte
    • United States
    • Florida Supreme Court
    • October 16, 1959
    ...1957, F.S.A.; Lutins v. State, 1940, 142 Fla. 288, 194 So. 803; Nelson v. State, 1941, 148 Fla. 338, 4 So.2d 375; Brown v. State, 1943, 152 Fla. 508, 12 So.2d 292; Bates v. State, Fla.App.1958, 102 So.2d 826, certiorari denied, Fla., 106 So.2d 199.4 An intelligent answer to the proposition ......
  • Penton v. State
    • United States
    • Florida District Court of Appeals
    • October 17, 1958
    ...construed it (Lutins v. State, 1940, 142 Fla. 288, 194 So. 803; Nelson v. State, 1941, 148 Fla. 338, 4 So.2d 375; Brown v. State, 1943, 152 Fla. 508, 12 So.2d 292) to vest in the trial court's discretion as to the extent and circumstances in which it may be employed. Furr v. State, 1942, 15......
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