Furr v. State

• Decision Date: 02 October 1942
• Parties: FURR v. STATE.
• Court: Florida Supreme Court

9 So.2d 801

152 Fla. 233

FURR v. STATE.

Florida Supreme Court

October 2, 1942

Whitaker Brothers, of Tampa, for petitioners.

J. Tom Watson, Atty. Gen., and Millard B. Conklin and Woodrow M Melvin, Asst. Attys. Gen., and H. Tolbert Black, Sp. Asst Atty. Gen., for respondent.

BUFORD, Justice.

On certiorari we review judgment of the Circuit Court of Hillsborough County affirming judgment of conviction of aggravated assault.

Petitioner was informed against, being charged with the offense of assault with intent to commit murder in the first degree, but at close of testimony the County Solicitor announced that he would concede that no offense greater than aggravated assault was shown to have been committed and elected to contend for conviction of that offense only.

The petitioner poses three questions for our determination, as follows:

'Question I.

'Where a man is charged with the offense of shooting a lad of 15 years of age, and the boy, while testifying for the State in Chief breaks down and cries before the jury, thereby creating an intense feeling of sympathy for the lad testifying, and intense prejudice against the defendant, is it not error for the trial court to deny motion of defendant to withdraw a juror and declare a mistrial on account of said prejudicial occurrence, and the inability of defendant to be accorded a fair and impartial trial on account thereof?'

'Question II.

'Is it not error for the prosecution attorney in his argument to the jury to make an appeal to their prejudice and passion, and make an argument calculated to arouse and inflame their passion and prejudice against defendant and capitalize upon prejudicial occurrences which took place during the progress of the taking of testimony?'

'Question III.

'When the jury makes known to the trial Judge that they are in disagreement as to the testimony of certain witnesses, is it not the duty of the trial judge to aid and assist the jury by causing said testimony to be read to them by the court reporter, instead of captiously cutting the jury short and ordering them back to their room?'

In answer to the first question we only say that petitioner has not made it clearly to appear that the trial court departed from the essential requirements of the law in pursuing the course reflected by the record in this regard.

Under the point presented in the second question we are constrained to say that the record shows the County Solicitor overstepped the bounds of propriety as shown by the record in his argument to the jury, in contending that the evidence warranted a conviction of a higher offense than that which he had stated to the court and counsel was the highest offense of which the cvidence would warrant conviction.

The statements complained of made by the prosecuting officer and duly objected to and about which no action was taken by the Court to correct, were:

'Now, gentlemen of the Jury, as I stated before, it is the province of the State to bring this testimony before you gentlemen and present and State's case in the most favorable manner of which we are capable. We have done that. No matter what you do with this defendant, gentlemen of the jury, my conscience is clear; but, gentlemen of the jury, it is up to you to do your duty. It is up to you gentlemen to do your duty and if this evidence convinces you--evidence of the State convinces you of the guilt of the defendant, to bring in a verdict of guilty.

'Gentlemen, we prosecute these cases for the good of the Community. I know that you gentlemen want to live in a peaceful, law-abiding community where your children will be safe; and although you may have boys who overstep the bounds sometimes and may not be as courteous as you might, we all try to make our children courteous and to respect their elders, and we try to keep our boys from being rowdy, like these children were that night. But, gentlemen of the jury, the fact that these boys were a little rowdy out there in the street and might have been indiscreet, gave this defendant no right to go out there and shoot them, or go out there and assault them, use his pistol; and if that boy had died, gentlemen of the jury, this defendant would have been guilty of murder in the first degree. So, gentlemen, for the sake of the community, for...