Dixon v. State

• Decision Date: 11 February 1931
• Citation: 101 Fla. 840,132 So. 684
• Parties: DIXON et al. v. STATE.
• Court: Florida Supreme Court

132 So. 684

101 Fla. 840

DIXON et al. v. STATE.

Florida Supreme Court

February 11, 1931

Commissioners' Decision.

Error to Circuit Court, Brevard County; W. W. Wright, Judge.

Ralph Dixon and another were convicted of aggravated assault, and they bring error.

Affirmed.

Syllabus by the Court.

SYLLABUS

A single assignment of error attacking the court's refusal to give a number of requested charges will be considered only so far as is necessary to ascertain if any one of them was properly refused.

Where the verdict is for a lesser offense, it is usually unnecessary to consider charges relating to the higher offense of which the accused has been acquitted.

Under the statutes of this state, it is not only lawful for, but it becomes the duty of, any police officer to arrest without a warrant any person who such officer 'has reasonable ground to believe' and 'does believe' has committed, or whom such officer finds in the act of committing, or about to commit, any felony.

When illegal action by an official in the administration or execution of a valid statute is charged, such illegal action should be duly, properly, directly, and distinctly alleged and, if not admitted by demurrer or otherwise, should be duly proven or proof thereof duly offered according to the usual and proper mode of procedure in such cases.

At common law, an arresting officer could lawfully arrest without warrant, a person whom he had 'reasonable grounds to suspect' of having committed a felony; while, under our statute, he must have 'reasonable grounds to believe,' and must believe, such person has committed a felony.

Generally where facts constituting the reasonable grounds for belief of commission of a felony, upon which the arrest is made, are in dispute, it becomes a question for the jury under proper instructions, but, if there is no dispute as to the facts the question is one for the court.

If, in making an arrest without warrant, an officer, through error, mistakes the facts and exceeds his authority, and there is coupled therewith negligence or carelessness whereby serious injury results to an innocent person, he becomes thereby lawfully accountable.

The measure of necessary force in making an arrest is generally considered to be that which an ordinary, prudent, and intelligent person with the knowledge, and in the same situation of the arresting officer, would have deemed necessary.

Where an officer is charged with using excessive force in making an arrest, the jury, under proper instructions, and not the accused, must judge as to whether more force was used than the occasion required.

If reasonable grounds for arrest without warrant are shown to exist, and no excessive force is used nor injury results, an arresting officer is not liable, although no crime has been committed.

A verdict of a jury will not be disturbed by the appellate court, when there is evidence to support it and the trial court has concurred by denying a motion for new trial, and where there is no showing that the jury must have been properly influenced by considerations outside of the evidence.

COUNSEL

F. W. Butler, of Melbourne, for plaintiffs in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

ANDREWS C.

Two indictments were filed against plaintiffs in error, in the circuit court of Brevard county. The first count of one indictment charged both plaintiffs in error jointly with culpable negligence in shooting into an automobile which they were pursuing and thereby inflicting a wound upon one of the occupants; and the second count of this indictment charged Dixon with the shooting and Brannen as being present, aiding, and abetting in the shooting. The other indictment filed at the same time charged Dixon with an aggravated assault upon the same person and Brannen with being present, aiding and abetting in the commission of the assault.

A motion to quash both counts of the indictment for culpable negligence was sustained as to the first count, and overruled as to the second count.

By stipulation of attorneys at the trial, the second count of the indictment charging culpable negligence was consolidated with the charge of aggravated assault and all evidence submitted to the same jury at the same time. The jury acquitted defendants of the charge of culpable negligence and convicted them on the charge of aggravated assault, and Dixon was sentenced to pay a fine or $100 and costs and in default of such fine and costs to serve a term of 30 days in the county jail, and Brannen was sentenced to pay a fine of $150 and costs or serve 60 days in the county jail.

A motion for new trial was denied, and both defendants took writ of error from the above sentence and judgment.

The first assignment of error is based upon the denial of the motion to quash the second count of the indictment for culpable negligence, which is based upon section 7164, Compiled General Laws of Florida, 1927. Upon trial the jury returned a verdict of not guilty upon this count, and the denial of the motion to quash that count, if error, is cured by the verdict.

There are several errors assigned in this case, and, while all have been carefully considered, it is only deemed necessary to refer to those legally presented and meriting special mention.

The twelfth and thirteenth grounds of the motion for new trial are based upon charges of the court covering the subject of culpable negligence which are eliminated, by reason of the verdict.

The fourth ground of the motion for new trial is that 'the Court erred in refusing to give each and every the requested charges of the defendants.' The only assignment of error having any reference to the charges given or refused by the court is assignment No. 2, as follows: 'The court erred in overruling the defendants' motion for a new trial.' While under this assignment any question properly raised by any ground of the motion for new trial may be considered as presented for review, it has long been the rule in this state that, if one assignment of error attacks the entire charge given by the court, or the court's refusal to give a number of requested charges, such assignment will not be considered, except to ascertain if any one of said charges was properly given, or refused. Shiver v. State, 41 Fla. 630, 27 So. 36; Crawford v. State, 70 Fla. 323, 70 So. 374. See, also, number of cases cited vol. 1, Wurt's Florida Digest, page 139.

The brief of plaintiffs in error questions the legality of the charges given by the court; but while the bill of exceptions shows that an exception was taken by defendants to each charge given, yet no ground of the motion for new trial nor any assignment based thereon attacked any charge given by the court of its own motion, except those charges with reference to culpable negligence which we have heretofore disposed of.

Where the verdict is for a lesser offense, it is not necessary to consider alleged errors in charges relating to a higher offense when the charge complained of could not have contributed to the conviction. Thomas v. State, 47 Fla. 99, 36 So. 161; Morris v. State, 98 Fla. 609, 123 So. 912. The charges upon culpable negligence could hardly have contributed to the conviction of aggravated assault in this case.

The question raised by the motion for new trial as to the sufficiency of the evidence to sustain the verdict of aggravated assault might be properly disposed of by stating that the jury settled that question, if it appears that there was any credible evidence before the jury to sustain the verdict. The main issue involved was whether the defendants exceeded their authority as arresting officers. The evidence shows, and it is admitted, that they pursued the automobile in the nighttime for the purpose of arresting the occupants and recovering an automobile reported to have been stolen, and in so doing they fired into the car and wounded two of the occupants, and that the car proved not to be the one which they had instructions to intercept.

Under section 8323, Compiled General Laws of Florida 1927, it is lawful for any police officer to arrest and take into custody without a warrant any person who such officer 'has reasonable ground to believe, and does believe,' has committed a felony, or whom he finds in the act of committing any felony, or about to commit any felony. Osborne v. State, 87 Fla. 418, 100 So. 365; Haynes v. State, 71 Fla. 585, 72 So. 180, 182.

In Osborne v. State, supra, it was held that:

'Under the law of this state, sheriffs, police officers, and other executive officers are not only authorized, but it is made their duty, to arrest and take in custody without warrant any person whom such officer has reasonable ground to believe and does believe has committed a felony.'

It was also held Haynes v. State, supra, that:

'In giving effect to the rights secured by the organic law for the protection of human life and liberty, courts should consider the substance of things, and should not be controlled by mere matters of form or of technical procedure,' and that, 'when illegal action by an official in the administration or execution of a valid statute is charged, such illegal action should be duly, properly, directly, and distinctly alleged, and if not admitted by demurrer or otherwise, should be duly proven or proof thereof duly offered according to the usual and proper mode of procedure in such cases.'

It becomes necessary here to review a portion of the evidence. According to the testimony of defendant Brannen, chief of police of Melbourne, he received a telephone message about 11 o'clock on the night of March 1, 1930, from Desk Sergeant Hubbard of Ft. Pierce, stating that a new light grey Ford sedan, used as a...