Clemons v. State

• Decision Date: 30 November 1904
• Citation: 37 So. 647,48 Fla. 9
• Parties: CLEMONS v. STATE.
• Court: Florida Supreme Court

37 So. 647

48 Fla. 9

CLEMONS v. STATE.

Florida Supreme Court, Division A.

November 30, 1904

Error to Circuit Court, Hillsborough County; Joseph B. Wall, Judge.

Lafayette Clemons was convicted of manslaughter, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where, in charges given by the trial judge to the jury, the following language is used, viz.: 'The instructions here given you numbered from 1 to 13, inclusive, embrace the law of the case, which you are to apply to the facts and circumstances as testified to by the witnesses, and thus determine the question of the guilt or innocence of the defendants, or either of them'--the use of the words 'embrace the law of the case' is unfortunate; but when it clearly appears that the judge gave other charges of his own, and many instructions requested by the defendant and in so doing used language which could not fail to impress the jury that he did not intend to astrict their consideration solely to charges numbered from 1 to 13, there is no reversible error.

2. When a defendant is convicted of manslaughter, this court will not consider an assignment of error based on a charge upon murder in the second degree.

3. A charge in the following language, viz.: 'If you believe from the evidence that Lafayette Clemons began the difficulty with Smith, and beat him, either with metallic knucks or a similar weapon, until Smith's death resulted, that the killing of Smith was not murder in any of the degrees as hereinbefore defined, and was not justifiable or excusable homicide as explained in these instructions, you should convict him of manslaughter'--is not obnoxious to the objection that it assumes 'metallic knucks or a similar weapon' were deadly weapons.

4. A defendant in a criminal case cannot avail himself of an error in his own favor, or of an error in a charge given by the trial judge, when the same error is embraced in instructions requested by him and given by the judge.

5. A charge by the trial judge giving the jury a form for a verdict of conviction is not erroneous because it contains no allusion to the right or power of the jury to acquit. If a defendant desires a form of a verdict of acquittal, it should be requested.

6. A charge in the following language, viz.: 'The court further charges you that it is a presumption of law that every sane person intends the natural and reasonable consequences of his own free voluntary acts, and if a sane person unlawfully, willfully, and intentionally strikes another person with a deadly weapon it is an inference of law that he intends to cause great bodily harm or death'--is not erroneous.

7. In the following charge, viz.: 'The court charges you as a matter of law that a deadly weapon is any weapon which is likely, from the use made of it at the time, to produce death or do great bodily harm'--it is not erroneous to use the alternative phrase 'or do great bodily harm'; and while it would be more correct to use the statutory word 'dangerous' than the word 'deadly,' the use of the word 'deadly' in the charge does not constitute an error of which the defendant can complain.

8. Where a physician had testified that there was a comminuted fracture of the left cheek bone of the deceased, and also other wounds, and fractures of the inner table of the skull of the deceased, it was competent to ask the physician whether, in his opinion as a physician, the comminuted fracture of the cheek bone could have been produced by a man's naked fist.

9. It is not erroneous for a trial judge to refuse to allow the defendant on cross-examination to ask a witness the question 'Was there anything said or done by either one or both of these parties that led you to believe or suppose that in going up the street they were going to hunt Thomas J. Smith [deceased]?' The question called for the belief or supposition of the witness.

10. The evidence has been examined, and found sufficient to support the verdict.

COUNSEL

Sparkman & Carter, Thos. Palmer, and G. B. Wells (W E. Baker, on the brief), for plaintiff in error.

W. H. Ellis, Atty., Gen., for the State.

OPINION

HOCKER J.

At the spring term, A. D. 1903, of the circuit court of Hillsborough county, Lafayette Clemons and Samuel Clemons were indicted for the murder of Thomas J. Smith. The indictment contains two counts. In the first the homicide is charged to have been committed 'with a certain deadly weapon, to wit, a contrivance commonly known as 'metallic knucks,' a further and more definite description of which is to the grand jurors unknown'; and, in the second count, 'with a certain deadly weapon, a more particular description whereof is to the grand jurors unknown.' Lafayette Clemons in each count is charged as principal in the first degree, and Samuel Clemons is charged as being 'present, unlawfully,' etc., 'aiding, assisting,' etc., 'Lafayette Clemons the murder aforesaid in manner and form aforesaid to do and commit.' At the fall term, 1903, the case was tried. Samuel Clemons was acquitted, and Lafayette Clemons was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for seven years. He seeks a reversal here by writ of error.

There are 24 assignments of error. Those argued here are 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 18, 19, 20, 21, 22, 23, and 24.

As the first assignment is based on the refusal of the court to grant a new trial, and involves a consideration of the sufficiency of the evidence to support the verdict, we will first consider the other assignments.

The third assignment is based on the following language used by the judge in his own instructions to the jury, viz.: 'The instructions here given you numbered from 1 to 13, inclusive, embrace the law of the case, which you are to apply to the facts and circumstances as testified to by the witnesses, and thus determine the question of the guilt or innocence of the defendants, or either of them.' It is contended that this language had the effect of impressing the jury with the notion that the charges asked for by defendants and given by the court after his own instructions were given were not to be considered by them as being any part of the law of the case. The words 'embrace the law of the case' were, perhaps, considered by themselves, unfortunate. We find, however, that the judge gave the charges requested by the defendant, read them to the jury, and that they contained language which could not fail to impress the jury with the conviction that they were given as portions of the law of the case. This is apparent from the fact that the judge withdrew from the consideration of the jury charges marked 'L,' 'M,' 'N.' 'O,' 'P,' requested by the defendants, because they applied to degrees of unlawful homicide, of which, from the evidence, they could not be convicted. Moreover, the court gave of its own motion eight other charges. The irresistible inference is that the other requested charges should be considered by the jury. Under this assignment we find no reversible error.

The fourth assignment of error is based on an instruction as to murder in the second degree. Inasmuch as the defendant was acquitted of that degree, it is unnecessary to consider this assignment. McCoy v. State, 40 Fla. 494, 24 So. 485; Richard v. State, 42 Fla. 528, 29 So. 413. Moreover, the only attack made on this instruction is made upon and applies to the fifth assignment.

Fifth assignment. The court erred in charging the jury as follows: 'If you believe from the evidence that Lafayette Clemons began the difficulty with Smith, and beat him, either with metallic knucks or a similar weapon, until Smith's death resulted, that the killing of Smith was not murder in any of the degrees as herein before defined, and was not justifiable or excusable homicide as explained in these instructions, you should convict him of manslaughter.' It is contended that this instruction is faulty in two respects: First, that it assumes that metallic knucks or a similar weapon were deadly weapons; and, second, that the court did not in this instruction define justifiable or excusable homicide. A careful reading of this instruction does not, in our opinion, reveal the first objection. Metallic knucks are not named as per se dangerous or deadly weapons. The defendant is only to be convicted if death resulted from their use; and surely, if a weapon, as used, produces death, it must in such a case be regarded as a dangerous or deadly weapon. Moreover, if the instruction was faulty in this regard, the defendant is in no situation to avail himself of it, for in two charges asked for by him and given by the court metallic knucks are distinctly classed as and assumed to be deadly weapons, viz., in charges 'A' and 'U.' Charge 'A' is as follows: 'Before the jury can find either of the defendants guilty of any offense under the indictment in this cause, they must believe beyond a reasonable doubt from the evidence that one of the defendants, at the time of the difficulty with the deceased, was armed either with metallic knucks or some other deadly weapon, and that one of the defendants struck the deceased therewith, and that from said blow or blows the deceased died.' A defendant in a criminal case will not be heard to complain of an error in his own favor, or of an error in instructions, where the same error occurs in those given at his own request. State v. Stewart, 90 Mo. 507, 2 S.W. 790; Blashfield on Instructions to Juries, § 380; 3 Cyc. 248. Inasmuch...