Brown v. State, No. 30596

• Court: United States State Supreme Court of Florida
• Writing for the Court: THORNAL; THOMAS; DREW; DREW
• Citation: 124 So.2d 481
• Parties: Ike BROWN, Petitioner, v. STATE of Florida, Respondent.
• Docket Number: No. 30596
• Decision Date: 16 November 1960

Page 481

124 So.2d 481 Ike BROWN, Petitioner,
v.
STATE of Florida, Respondent. No. 30596. Supreme Court of Florida. Nov. 16, 1960.

Page 482

W. B. Hunter, Tavares, for petitioner.

Richard W. Ervin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., Gordon G. Oldham, State Atty., Leesburg, and John W. McCormick, Asst. State Atty., Taveres, for respondent.

THORNAL, Justice.

By petition for certiorari we are requested to review a decision of the Court of Appeal, Second District, on the ground of alleged conflicts with stated prior decisions of this Court on the same points of law. Article V, Section 4(2), Florida Constitution, F.S.A.

We must decide whether a fundamental error occurs in a first degree murder trial when the trial judge advises the jury that under the facts third degree murder 'can in nowise be applicable.'

Petitioner Brown was tried pursuant to an indictment charging murder in the first degree. He was convicted of murder in the second degree. At the conclusion of the trial the trial judge instructed the jury on the various degrees of unlawful homicide and added 'murder in the third degree can, in nowise, be applicable in this case.' No objection was urged during the trial. The defendant did not request an instruction to the effect that the jury could bring in a verdict of murder in the third degree. The matter was never raised in the trial court until the trial judge himself on a motion for new trial concluded that this Court in Pait v. State, Fla., 112 So.2d 380, had in effect decided that the failure to instruct on all degrees of homicide in a first degree murder case constitutes a fundamental error which requires a new trial regardless of request by the accused. From the ruling granting the new trial the state appealed. The Court of Appeal, Second District, in State v. Brown, Fla.App., 1960, 118 So.2d 574 concluded that while the instruction on the non-applicability of third degree murder should not have been given, the giving thereof in the absence of objection by the defendant or a specific request to the contrary did not constitute a fundamental error sufficient to justify a new trial. We are now requested to review this decision of the Court of Appeal with the contention that it conflicts with the prior decisions of this Court in Pait v. State, supra, Killen v. State, Fla., 92 So.2d 825, and Henderson v. State, 155 Fla. 487, 20 So.2d 649.

Because of ostensible conflict we accepted jurisdiction and have heard the matter on the merits.

Petitioner Brown contends that in the cited cases this Court has held that it is essential to the validity of a first degree murder trial that the jury be advised that it can find the defendant guilty of any degree of unlawful homicide. He asserts that his failure to object at the instant trial or request an instruction on the subject is of no consequence because in his view the error was fundamental to the validity of the trial and can be reviewed on appeal under the decision of this Court in Henderson v. State, supra.

It is simply the position of the State that if error was committed it was not of such fundamental nature as to justify a new trial in the absence of objections or request by defendant.

For coherence we remind that the decision of the Court of Appeal reversed the trial judge who had the view that the error was fundamental in nature and justified a new trial regardless of objections or request by the defendant. The Court of Appeal

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adopted the position that the error was not fundamental. It held that the trial judge committed error when he granted the new trial in the absence of objections or request by the defendant during the course of the trial. It is this conclusion of the Court of Appeal which we now examine.

This Court is now definitely committed to the rule that wherever evidence is sufficient to sustain a charge of murder in the first degree, whether committed in the perpetration of certain felonies or whether from a specific premeditated design a verdict convicting a defendant of a lesser degree of homicide will not be disturbed even though there is no evidence of the particular degree of the offense for which he might be convicted. We have taken the view that the responsibility of determining the degree of guilt in such cases rests peculiarly within the bosom of the trial jury. Killen v. State, Fla., 92 So.2d 825.

To make clear our position which we had hoped was sufficiently explicit in Killen v. State, supra, we repeat here that which we announced there to the effect that under Section 919.14, Florida Statutes, as amended in 1939, F.S.A., the Court should in all cases instruct the jury on the various degrees of the offense charged in the indictment. When the offense charged is first degree murder, whether grounded on specifically alleged premeditated design, or whether committed in the perpetration of certain felonies as proscribed by Section 782.04, Florida Statutes, F.S.A., the defendant is entitled to have the jury advised on all the degrees of unlawful homicide, including manslaughter. There should be a further instruction that it is in the province of the jury to determine the degree. Killen v. State, supra.

The question which now challenges our attention is whether the failure of a trial judge to give such an instruction constitutes a reversible fundamental error when the accused fails to request the instruction or fails to object to any instruction actually given. In the instant case the trial judge told the jury that third degree murder could in nowise be applicable. The defendant and his counsel remained silent, urged no objection and made no request for a contrary instruction. As a matter of fact, the point was not specified in the motion for a new trial. The trial judge himself sua sponte raised the point in view of his interpretation of certain language used by this Court in Pait v. State, Fla., 112 So.2d 380. In the case last cited we merely pointed out that we had observed the absence of an instruction on third degree murder and inasmuch as the case was being reversed on other grounds we simply invited the attention of the trial judge to this deficiency in order to forestall a possible recurrence of the error at a subsequent trial. Our language on this point could probably be classed as dictum although we felt that we made it expressly clear that we were not ruling on the point as an error for reversal but merely as a guide to the trial judge upon the event of another trial. There is no basis for extracting from State v. Pait, supra, any notion that we there held that the failure to instruct on third degree murder in a first degree murder case constitutes reversible error in the absence of an appropriate request for such an instruction by the accused.

This latter position we thought was made clear by our opinion in Williams v. State, Fla., 117 So.2d 473. In that case we pointed out that there was a failure to charge on a lesser degree of unlawful homicide. We declined to hold the error to be fundamental so as to render the judgment of conviction erroneous on that score, there being no objections raised at the trial.

To summarize our position, we herewith hold that in any trial for first degree murder the accused is entitled to have the jury instructed on all degrees of unlawful homicide including manslaughter and error is committed if he requests such an instruction and is refused. On the other hand, if the accused fails to request such an instruction

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or fails by timely objection to bring to the attention of the trial judge an error in any such instruction given he cannot urge the error for the first time on appeal. Section 918.10(4), Florida Statutes, F.S.A..

We do not overlook the contention of the petitioner that the error was fundamental to the validity of the trial and...