Febre v. State
| Decision Date | 06 May 1947 |
| Citation | 30 So.2d 367,158 Fla. 853 |
| Parties | FEBRE v. STATE. |
| Court | Florida Supreme Court |
Appeal from Circuit Court, Hillsborough County; Harry N Sandler, judge.
Edwin R Dickenson and Julian Diaz, both of Tampa, for appellant.
J. Tom Watson, Atty. Gen., and Reeves Bowen, Asst. Atty. Gen., for appellee.
The defendant was convicted of murder in the first degree with recommendation to mercy.
The story is old. The details are different. About midnight one Saturday, the defendant returned to the home in which he and his wife had lived together until a month before. He knocked on the door. A man's voice answered, 'Who is there?' The defendant, using his own key to enter the front door, walked into the living room. As he did so his wife, scantily clad appeared in a doorway, just a few feet away, and to his immediate right, which doorway separated the living room from the bedroom they formerly used. A man entirely nude except for his socks, came through the doorway. He was shot by the defendant. A struggle ensued. This man received several lacerations and wounds on the head, resulting in a skull fracture, which produced death. When the police entered the room, a few minutes later, having been called in response to a 'phone call from one who happened to be passing by in the street, the deceased lay upon the floor. $The defendant and his wife had been married for about a year and a half. They had separated about a month before the killing. He had filed a suit for divorce, on which a decree pro confesso had been entered and concerning which the testimony had apparently been taken, but no decree had been entered by the court. The defendant, though going with another girl at the time, had been endeavoring to effect a reconciliation with his wife. The defendant knew the deceased, but had only met him on one previous occasion. The defendant had his wife out to dinner two days before the killing, in an effort to effect a reconciliation. The wife, who testified for the State, explained the presence of the deceased by saying that the two of them had been out during the evening, but the deceased had become ill, as a result of which he was unclothed and in her bedroom awaiting an alcohol rub. The evidence further indicates that in the six room house there was only one light, if there was any at all, and this light was in the kitchen, two rooms away. She testified that she and the deceased had been in the bedroom some ten minutes, but the alcohol rub had not commenced. The evidence fails to indicate that any alcohol was found on the premises with which she could have rubbed the deceased, had she endeavored to carry out her expressed intention. She said she and the deceased had been sweethearts for about three weeks, but she 'did not have nothing to do with that with Johnnie,' the deceased.
Several errors are assigned. The two which we deem proper to discuss being, first, as to a refusal of the court to give certain charges requested by the defendant and, secondly, that the evidence did not show the existence of a premeditated design to effect death.
In connection with the first alleged error, the record shows that the defendant did request a number of charges, which were denied. At the conclusion of the testimony and before counsel argued the cause to the jury, the following appears in the record: 'Whereupon, the proposed instructions to the Jury were submitted to counsel for both sides, and no exceptions were taken or recorded.'
While no exception as such is required when an objection is made to the giving or failure to give an instruction, F.S.A. § 918.10(5), the defendant is nevertheless bound by F.S.A. § 918.10(4), which is as follows:
The record fails to show that the defendant made any objection to the trial court to the giving or the failure to give any instruction. It is now too late in an appeal for him to assign as error, or as grounds of appeal, the giving or the failure to give an instruction to the jury.
The defendant further contends that the evidence fails to disclose a premeditated design to effect the death of the person killed and that the evidence, at most, indicates that there was sufficient legal provocation to reduce an unlawful homicide from murder to manslaughter. The defendant also urges self-defense, but the evidence utterly fails to establish any sufficient basis for such a defense.
The State asserts that the defendant had a premeditated design to effect death because the defendant knew of the kind of a car that the deceased had, and saw or...
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