Fogler v. State
| Decision Date | 26 June 1928 |
| Citation | 117 So. 694,96 Fla. 68 |
| Parties | FOGLER v. STATE. |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Duval County; De Witt T. Gray, Judge.
Marion Fogler was convicted of manslaughter, and he brings error.
Affirmed.
Syllabus by the Court
Charging jury without request relative to defendant's right to testify, and that failure to testify cannot be considered to his prejudice, held not error (Rev. Gen. St. 1920, § 6080). In a criminal prosecution, it is not error for the court of its own motion, and in the absence of a request from the defendant, to charge the jury as follows: 'Under the laws of this state, a defendant has the right to take the stand and testify in his own behalf, and such testimony goes before you the same as the testimony of any other witness in the case to be weighed and considered according to the same rule but the fact that he does not testify cannot be considered by you to his prejudice.'
Failure to entitle verdict and of person signing same to style himself as foreman held insufficient of itself to vitiate verdict (Rev. Gen. St. 1920, § 2812). Neither the fact that a verdict is not entitled in the cause nor that the person who signed the same did not style himself as foreman are sufficient in and of themselves to vitiate a verdict which when construed with reference to the entire record, is definite and clearly expresses the manifest intention of the jury, and is otherwise legal; the record disclosing that the name signed to the verdict coincides with the name of one of the jurors duly sworn to try the case. It is the better practice, however, for the verdict to be signed by one of the jury as foreman.
Recital in motion for new trial of incident occurring in argument of state attorney is not sufficient to authorize review thereof. Recitals in a motion for new trial are not evidence or proof of the facts asserted therein, and the mere recital in such a motion of an incident occurring in the argument of the state attorney, there being elsewhere in the bill of exceptions no mention of the incident, is not sufficient to bring the matter before this court for review as to the propriety of the conduct complained of.
John E. Hartridge, of Jacksonville, for plaintiff in error.
Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.
Upon an indictment charging murder in the first degree, plaintiff in error was convicted of manslaughter.
Four assignments of error are relied on for reversal. The first is based upon the giving of the following charge by the trial court of its own motion and in the absence of a request from the defendant:
'Under the laws of this state, a defendant has the right to take the stand and testify in his own behalf, and such testimony goes before you the same as the testimony of any other witness in the case to be weighed and considered according to the same rule, but the fact that he does not testify cannot be considered by you to his prejudice.'
Defendant concedes that it is proper to give such a charge at the request of the defendant, but urges that it is reversible error to give it in the absence of a request from the defendant, because to do so violates the spirit of section 6080, Rev. Gen. Stats., which is as follows:
'No accused person shall be compelled to give testimony against himself, nor shall any prosecuting attorney be permitted before the jury or court to comment on the failure of the accused to testify in his own behalf.'
Such a charge has frequently been considered and the action of the trial court in giving it of its own motion held without error in states having statutes identical with, or similar in substance to, section 6080, supra. Those courts have held with striking unanimity that the prohibition of the statute does not apply, either in letter or spirit, to charges of the court which are otherwise proper. Such a charge is held to be in the interest of the defendant and properly given by the trial court of its own motion to allay all possibility that the jury might draw improper inferences from the failure of the defendant to testify. The spirit of the section is to relieve the defendant of any prejudice in the minds of the jury which might result from his failure to testify, and further to prohibit any adverse comment on that account by the prosecutor; but for a court to direct a jury in the course of the charge that they shall not consider the failure of the defendant to testify in making up their verdict is certainly not prejudicial to the defendant, but is in his interest. Without the charge a prejudicial inference might frequently be drawn. The charge merely supplements the 'presumption of innocence' charge with particular reference to the failure of the accused to testify. While it may not be necessary in all cases to give the charge (see Roberts v. State, 72 Fla. 132, 72 So. 649), it is not reversible error to do so (State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422; State v. Bartlett, 55 Me. 200; State v. Weems, 96 Iowa, 426, 65 N.W. 387; State v. De Witt, 186 Mo. 61, 84 S.W. 956; Ferguson v. State, 52 Neb. 432, 72 N.W. 590, 66 Am. St. Rep. 512; People v. Hayes, 140 N.Y. 496, 35 N.E. 951, 23 L. R. A. 830, 37 Am. St. Rep. 572; State v. Wisnewski, 13 N.D. 648, 102 N.W. 883, and the many cases cited in the note thereto reported in 3 Ann. Cas. 907; 16 C.J. 1021).
The charge here considered is more favorable to the accused than that approved in Prevatt v. State, 82 Fla. 284, 89 So. 807. See, also, the discussion in O'Steen v. State (Fla.) 111 So. 725, and Hampton v. State, 50 Fla. 55, 39 So. 421.
The second and fourth assignments question the form of the verdict, which was as follows:
'F. S. Brunson.'
The objection is that the verdict is not entitled as having been returned in any cause or court, nor does the person who signed the same style himself as foreman.
Verdicts should be construed with reference to the entire record, all fair intendments consistent with the record being indulged in support of the verdict, and if, when so construed, it is definite and clearly expresses the manifest intention of the jury, and is otherwise legal, mere inaccuracies of expression or form will not vitiate the verdict. O'Neal v State, 54 Fla. 96, 44 So. 940; Bass v. Doolittle (Fla.) 112 So. 892. While it is a universal custom in this state, and certainly the proper...
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