Brown v. State, 35773

Decision Date17 January 1968
Docket NumberNo. 35773,35773
Citation206 So.2d 377
PartiesErnest BROWN, Petitioner, v. STATE of Florida, Respondent.
CourtFlorida Supreme Court

T. Edward Austin, Jr., Public Defender, and James L. Harrison, Assistant Public Defender, for petitioner.

Earl Faircloth, Atty. Gen., and David U. Tumin, Asst. Atty. Gen., for respondent.

THORNAL, Justice.

By petition for certiorari we have for review a decision of the District Court of Appeal, First District, because of an alleged conflict with a prior decision of this Court. See, Brown v. State, 191 So.2d 296 (1st Fla.App.1966).

We must consider the problem of lesser included offenses and jury instructions with reference thereto.

On October 24, 1964, petitioner Brown entered a Jacksonville grocery store. At gunpoint, he forced the cashier to turn over to him the contents of the cash register. About an hour later, Brown was arrested and the total 'take' amounting to $68.00 was recovered. He was charged with robbery and brought to trial. At the close of all the evidence Brown's attorney requested 'a verdict form of larceny'. The trial judge denied the request, announcing, 'Well, I'm not going to give a charge on larceny. I don't think there is anything whatsoever here to support it'. Defense counsel registered his objection. Brown was convicted of robbery. On appeal the District Court affirmed. Its decision is now here for review.

Petitioner alleges a conflict between the decision in the instant case, and, the decision of this Court in Jimenez v. State, 158 Fla. 719, 30 So.2d 292 (1947). In the case at bar, the District Court held that a charge on a lesser included offense is not required because the evidence 'was not susceptible of a reasonable inference by the jury that the appellant was guilty of the lesser offense * * * and not of the greater offense * * *.' In effect the District Court held that in order to justify a charge on a lesser included offense, the evidence must be such as to exclude the possibility of a conviction of the greater offense charged. This holding does conflict with Jimenez, supra. It was there held that an accused may be convicted of a lesser included offense even though the proofs show that he could be found guilty of the greater offense charged. In the case before us, the District Court held that the evidence must show that the accused committed the lesser offense but must also show that the greater offense charged in the information was not committed. Having acquired jurisdiction, we proceed to consider the cause on its merits. Fla Const. Art. V, § 4, F.S.A.; Tyus v. Apalachicola N.R.R., 130 So.2d 580 (Fla.1961).

Recent months have presented to our appellate courts a rash of lesser included offense situations. Our own consideration of the cases which have reached us, suggests the advisability of an historical analysis of the problem and a definitive statement of applicable rules for the guidance of Florida courts. The situation is one which has challenged the effective administration of criminal justice for centuries. It is as old as the common law. Indeed, Blackstone tells us that there were recognized degrees of guilt which distinguished the seriousness of offenses, and hence the punishment, even among the Gothic and Roman predecessors of the common law. Blackstone's Commentaries, Lewis ed. Vol. 2, p. 1587 (1898). We are similarly told that at common law, a jury may 'convict of a cognate offense (sic) of the same character but of a less aggravated nature, if the words of the indictment are wide enough to cover such an offence (sic)'. Halsbury's, Laws of England, 2nd ed., Vol. IX, p. 175.

The English cases support the text-writers. In Mackalley's case, 9 Co.Rep. 616, at pp. 65a, 67b (1611), it was held that on an indictment for murder a defendant may be convicted of manslaughter. Reg. v. Greenwood, 7 Cox C.C. 404 (1857). See also, 2 Hale P.C. 302. At common law, there were two degrees of unlawful homicide--murder and manslaughter, depending on a finding of malice in the commission of the act. In Reg. v. Greenwood, supra, the jury was instructed that they were privileged to ignore a justifiable inference of constructive malice as shown by the evidence, and in their discretion, bring in a verdict of manslaughter on an indictment for murder which accompanied a rape. R. v. French, 14 C.C. 328 (1879).

In the area of lesser included offenses the common law permitted conviction of a lesser offense within the major offense charged, when such lesser offense is supported also by the proofs. Rex v. Hunt, 2 Camp. 583 (1811). In Rex v. Hollingsberry, 4 B. & C. 329 (1825), it was held that in a criminal case, it is sufficient simply to prove so much of the charge as constitutes an offense punishable at law. See also, R. v. Brookes, Car. & M. 543 (1842); Rex v. Bullock, 1 Mood. C.C. 324(n) (1825).

These English cases are cited as illustrative of common law decisional bases for the Florida statutory provisions which we hereafter discuss. They also add historical support for our application of these statutes to the several types of situations which we shall elaborate. We emphasize the importance of the statutes which we quote. A thorough acquaintance with the provisions of these statutes is absolutely essential to a correct solution of the problems at hand.

Crimes divisible into degrees are governed by Fla.Stat. § 919.14 (1965), F.S.A., which provides:

'Determination of degree of offense. If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.'

Convictions of attempt and lesser included offenses are governed by Fla.Stat. § 919.16 (1965), F.S.A., as follows:

'Conviction of attempt; conviction of included offense. Upon an indictment or information for any offense the jurors may convict the defendant of an attempt to commit such offense, if such attempt is an offense, or convict him of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.'

Attempts generally are condemned, and punishment therefor provided by Fla.Stat. § 776.04 (1965), F.S.A. The problem of instructions is dealt with in our discussion of Fla.Stat. § 918.10 (1965), F.S.A., infra.

The quoted statutes suggest four categories or situations which have distinguishing characteristics and should not be confused. They are:

(1) Crimes divisible into degrees.

(2) Attempts to commit offenses.

(3) Offenses Necessarily included in the offense charged.

(4) Offenses which May or may not be included in the offense charged, depending on the accusatory pleading and the evidence.

We proceed now to discuss the rules applicable to each of the categories outlined above.

CRIMES DIVISIBLE INTO DEGREES. Section 919.14, applies only to those crimes which are divided into degrees, e.g., unlawful homicide (Fla.Stat. §§ 782.04, 782.06, F.S.A.), and, arson (Fla.Stat. §§ 806.01--806.04, F.S.A.). If an accused is charged with the highest degree of such a crime, the court should charge the jury on all lesser degrees. In this category it is immaterial whether the indictment specifically charges the lesser degrees or whether there is any evidence of a crime of such degree. Killen v. State, 92 So.2d 825 (Fla.1957); Brown v. State, 124 So.2d 481 (Fla.1960). The court must instruct on the lesser degrees simply because § 919.14 clearly requires it, and not because such degrees are necessarily included lesser offenses. In many cases the elements of the lesser degrees are totally distinct from the offense charged. See e.g., Clemmons v. State, 43 Fla. 200, 30 So. 699 (1901). If the evidence is sufficient to support a verdict of guilty of the offense charged, the jury has the power, under § 919.14 to find the accused guilty of a lesser degree of the offense regardless of the lack of evidence as to such degree. Killen v. State, supra; Hodella v. State, 158 Fla. 94, 27 So.2d 674 (1946). Under the statute, the trial judge should, and if requested must, instruct on all lesser degrees of the offense, if the case is allowed to go to the jury for a determination of guilt or innocence on the offense charged. Brown v. State, 124 So.2d 481 (Fla.1960).

ATTEMPTS. Under § 919.16, a jury is empowered to convict a defendant of an attempt to commit the offense charged in the accusatory pleading, if such an attempt is itself an offense. Attempts generally are proscribed by § 776.04, supra. In limited situations attempts to commit described acts are defined as separate substantive offenses. For example, Fla.Stat. § 806.04, F.S.A. defines fourth degree arson in terms of an attempt to burn certain property.

Section 919.16, simply requires that in every case, the trial judge must determine as a matter of law whether an attempt to commit the crime charged would itself constitute an offense under Florida law. If he determines that it does, either under § 776.04, or under a separate statute, then he must instruct the jury on the subject of such attempt, and the jury may find guilt accordingly. In this situation it is immaterial whether the accusatory pleading specifically charges an attempt. Further, the charge must be given, even though, in the opinion of the trial judge, the proofs establish guilt of the crime charged rather than a mere attempt to commit it.

(3) NECESSARILY INCLUDED OFFENSES. This category also stems from § 919.16, which requires an instruction on 'any offense which is necessarily included in the offense charged'. The statutory mandate here requires that the lesser offense be Necessarily included in the major offense Charged by the accusatory pleading. This simply means...

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