Goswick v. State
| Decision Date | 18 July 1962 |
| Docket Number | No. 31669,31669 |
| Citation | 143 So.2d 817 |
| Parties | Henry Grady GOSWICK, Petitioner, v. The STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Fuller Warren, Carey, Goodman, Terry, Dwyer & Austin and Angus M. Stephens, Jr., Miami, for petitioner.
Richard W. Ervin, Atty. Gen., and Herbert P. Benn, Asst. Atty. Gen., for respondent.
By petition for a writ of certiorari we are requested to review a decision of the District Court of Appeal, Third District, because of an alleged conflict with a prior decision of this Court on the same point of law. See Goswick v. State, Fla.App., 137 So.2d 863.
We must determine whether a jury instruction on assault and battery should have been given in a trial where the defendant was charged with the crime of aggravated assault.
Petitioner Goswick attacked one Hudson by beating him with a steel rod. Goswick was informed against for the crime of aggravated assault. At the close of the evidence the trial judge charged the jury. Before the jury started its deliberations the defendant objected generally to the charges and also particularized his objection as follows:
'* * * in particular the Defendant objects to the fact that the general charge of the Court in defining aggravated assault, simple assault, assault and battery and simple assault did not mention nor did it make it clear to the jury that if the jury found that the Defendant had been assaulted with a weapon which they had found not to be a deadly weapon then the verdict would be assault and battery.'
The trial judge declined to give the instruction regarding assault and battery. Goswick was convicted of aggravated assault as charged. On appeal the District Court of Appeal affirmed the ruling of the trial judge. Goswick v. State, supra. It is this decision which is now submitted for review.
The petitioner contends that the decision of the Court of Appeal conflicts with a prior decision of this Court in McCormick v. State, 153 Fla. 838, 16 So.2d 49.
The respondent contends that there is no conflict and, therefore, this Court is without jurisdiction to proceed.
The respondent argues that the Court of Appeal found it unnecessary to decide 'whether assault and battery is a lesser included offense of the statutory crime of aggravated assault.' The Court of Appeal did announce this position in the opinion under review. It based this aspect of its decision on its conclusion that the objection raised by Goswick at the trial was 'too general to be the basis for reversal.' Despite its view regarding the sufficiency of the objection, the Court of Appeal, nevertheless, proceeded to consider whether an instruction on assault and battery 'was necessary in order for the defendant to have a fair trial.' Fla.App.Rule 6.16, 31 F.S.A. The Court of Appeal stated that 'the evidence raised no real issue as to the aggravated nature of the assault.' It then expressly concluded 'that the failure to instruct upon the offense of assault and battery was not prejudicial error.' An analysis of the decision of the Court of Appeal reveals that the court expressly passed upon the defendant's entitlement to the requested instruction on assault and battery and in doing so ruled adversely to Goswick's position asserted in his objection which we have quoted. Because of prima facie showing of a conflict between the instant decision and McCormick v. State, supra, we issued a writ of certiorari. After hearing oral arguments and a careful study of the record and briefs, we have concluded that the two decisions are in direct conflict on the same point of law.
The District Court properly recognized its obligation to determine whether the instruction was necessary in order for the defendant to have a fair trial. This Court has consistently acknowledged such a responsibility. When a trial judge undertakes to define an offense for the conviction of which an accused might be sent to jail, it is the duty of the judge to instruct the jury on the law of the case and to cover each essential element of the offense charged. This responsibility includes the duty to advise the jury regarding lesser included offenses which the record will support. When the failure to do so is brought to the attention of the trial judge, as was done here, it is error to refuse the charge. When the record indicates that an accused may properly be found guilty of a lesser offense than the one charged and when importuned to do so, the judge refuses to advise the jury that it may bring in a verdict for the lesser offense, such refusal is equivalent to informing the jury that the only offense subject to its consideration is the more serious charge. To this extent the defendant would be deprived of the opportunity to have the jury consider the less serious offense. Croft v. State, 117 Fla. 832, 158 So. 454; Motley v. State, 155 Fla. 545, 20 So.2d 798. Denial of such a privilege can hardly be classed as harmless.
In McCormick v. State, supra, this Court expressly stated that the evidence submitted to support a charge of aggravated assault might well be sufficient to support a finding of guilt of assault and battery. There is a substantial difference between the two crimes, as we shall see. However, under the cited decision it is clear that when the evidence in a trial for aggravated assault would support a conviction for assault and battery, certainly the trial judge should give an instruction covering the latter offense. This is particularly important in view of the greater severity of punishment which may be administered for one guilty of aggravated assault as contrasted to the punishment for assault and battery. Consequently, in holding that the trial judge properly refused to instruct upon the offense of assault and battery the Court of Appeal rendered a decision in direct conflict with the prior decision of this Court in McCormick v. State, supra.
There were no degrees of 'assault' at common law. Wharton, Criminal Law...
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