Carr v. State
| Decision Date | 19 May 1903 |
| Citation | 34 So. 892,45 Fla. 11 |
| Parties | CARR v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Washington County; Lucius J. Reeves, Judge.
Elijah Carr was convicted of murder, and brings error. Affirmed.
Syllabus by the Court
1. Where errors are assigned upon matters that do not appear in the transcript of the record, they cannot be considered by an appellate court.
2. On a trial for murder in the first degree, where there is no evidence whatever even tending to make out the crime of murder in the third degree as defined by our statute, it is not error for the court to charge the jury to the effect that 'there is no evidence before you authorizing a conviction for murder in the third degree.'
3. Error cannot be assigned of the judge's failure to charge upon any question of law, unless the party desiring it shall have requested charges thereon.
4. Under the provisions of section 1092, Rev. St. 1892, only such charges as were actually given can be excepted to through the medium of a motion for new trial. Refusals to give requested instructions cannot be excepted to in this manner, but such exceptions to such refusals must be taken and noted at the time of such refusals, otherwise they cannot be considered on writ of error.
5. When a party suspected of crime in any manner endeavors to evade or escape a threatened prosecution by flight, concealment resistance to a lawful arrest, or other ex post facto indication of a desire to evade prosecution, such fact may be shown in evidence as one of a series of circumstances from which guilt may be inferred.
COUNSEL D. J. Jones and W. O. Butler (Buell Cook, on the brief), for plaintiff in error.
James B. Whitfield, Atty. Gen., for the State.
The plaintiff in error, hereinafter called the 'defendant,' was indicted at the fall term, 1901, of the circuit court for Washington county, for the crime of murder in the first degree, was arraigned and tried at the fall term, 1902, of said court, and was convicted of murder in the second degree, and seeks a reversal here by writ of error.
The first assignment of error is the denial of the defendant's motion for new trial. The first three grounds of this motion, involving the sufficiency of the evidence to sustain the conviction had, will be disposed of last. The fourth ground of the motion for new trial alleges error in permitting one McKeithen, a state witness, to testify to an alleged confession by the defendant to the effect that 'there were others in it besides himself.' Upon examining the evidence of this witness, we do not find that he gave the evidence attributed to him in this ground of the motion for new trial, and there is no exception taken to any such evidence by this witness. This assignment consequently fails for want of facts upon which to predicate it.
The fifth ground of the motion for new trial alleges error in the court instructing the jury that 'there is no evidence before you authorizing a conviction for murder in the third degree.' There was no error in the giving of this charge inasmuch as there was not a scintilla of evidence in the case tending to make out the crime of murder in the third degree as defined by our statute.
The sixth ground of the motion for new trial is as follows 'Because the court erred in charging the jury as follows 'If the defendant killed Turner by shooting him as charged, under such circumstances that the killing was neither justifiable nor excusable, nor murder in any of its degrees, he would be guilty of manslaughter,' without defining to the jury what would constitute justifiable and excusable homicide.' There was no error here. The charge, as given, states the law correctly. If the defendant desired it amplified with instructions defining justifiable and excusable homicide, he should have requested such instructions, and cannot complain of the court's omission to so charge, in the absence of a request for such charges.
The seventh and eighth grounds of the motion for new trial allege error in the court's not requiring the prosecuting attorney to tender to the defendant a complete panel of jurors before requiring him to accept or reject jurors tendered, but, instead thereof, in requiring the defendant to accept or reject two or three jurors at a time, instead of having an entire panel tendered him by the state. These assignments cannot be...
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Blackwell v. State
...in evidence as one of a series of circumstances from which guilt may be inferred. Whart. Crim. Ev. (9th Ed.) § 750, and citations; Carr v. State, 45 Fla. 11, text 16, So. 892. The fourth and fifth assignments complain of the refusal of the judge to give charges upon circumstantial evidence.......
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Mckenna v. State
... ... upon any question of law unless the party desiring it shall ... have requested the desired instruction. See Carter v ... Bennett, 4 Fla. 283; Cato v. State, 9 Fla. 163; ... Reed v. State, 16 Fla. 564; Lungren v ... Brownlie, 22 Fla. 491; Blount v. State, 30 Fla ... 287, 11 So. 547; Carr v. State, 45 Fla. 11, 34 So ... 892; Lindsey v. State, 53 Fla. 56, 43 So. 87; ... Pugh v. State, 55 Fla. 150, 45 So. 1023; Key ... West v. Baldwin, 69 Fla. 136, 67 So. 808; Herndon v ... State, 73 Fla. 451, 74 So. 511; Cross v. State, ... 73 Fla. 530, 74 So. 593; Hobbs v. State, 77 Fla ... ...
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Padgett v. State
...in the case, he should have specifically requested the desired instruction. Rawlins v. State, 40 Fla. 155, 24 So. 65, and Carr v. State, 45 Fla. 11, 34 So. 892. only remaining question meriting consideration is as to the sufficiency of the evidence to support the verdict. A detailed discuss......
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State v. Brown, 1247
...on a lesser degree of homicide where there was no evidence in the record tending to make out a lesser degree of murder. In Carr v. State, 45 Fla. 11, 34 So. 892, the Court held that it was not error for the trial judge, in instructing the jury, to have stated that there was no evidence auth......