Graham v. State

• Decision Date: 19 December 1916
• Citation: 73 So. 594,72 Fla. 510
• Parties: GRAHAM v. STATE.
• Court: Florida Supreme Court

73 So. 594

72 Fla. 510

GRAHAM v. STATE.

Florida Supreme Court

December 19, 1916

Error to Circuit Court, Marion County; W. S. Bullock, Judge.

Z Graham was convicted of assault with intent to commit murder in the second degree, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

The arguments and comments of counsel in the progress of a trial before a jury are controllable in the judicial discretion of the trial court, and an appellate court will not interfere with the exercise of such discretion, unless a clear abuse thereof has been made to appear.

When a defendant in a criminal prosecution conceives that the state attorney has used improper and harmful language in his argument to the jury, in order to have the same reviewed by an appellate court, it must be made to appear that such language was brought to the attention of the trial court, a ruling obtained thereon, and exception taken to such ruling.

Requested instructions, though announcing correct principles of law applicable to the case, are properly refused where such principles are fully covered in other instructions given at the trial, even though couched in different language.

A requested instruction relating to self-defense is properly refused when, taken as an entirety, it does not contain a correct statement of the law upon self-defense.

Detached portions of a charge should be considered in connection with the charge as a whole, and with the evidence adduced at the trial; and, when so considered, if they are not subject to the criticism urged against them, the assignments of error based thereon fail.

Where a charge or an instruction, as far as it goes, states a correct proposition of law, but is defective because it fails to qualify or explain the proposition it lays down in consonance with the facts of the case, such defect is cured if subsequent instructions are given containing the required qualifications or exceptions. It is not required that a single charge or instruction should contain all the law relating to the particular subject treated therein.

In determining the correctness of charges and instruction, they should be considered as a whole; and if, as a whole, they are free from error, an assignment predicated on isolated paragraphs or portions which, standing alone, might be misleading, must fail.

In passing upon a single instruction or charge, it should be considered in connection with all the other instructions and charges bearing on the same subject; and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction or charge must fail, unless under all the peculiar circumstances of the case the court is of the opinion that such instruction or charge was calculated to confuse, mislead, or prejudice the jury.

The statutes of this state do not require or make it necessary that a verdict of assault with intent to commit murder shall state the degree of murder, but where the verdict returned finds the defendant guilty of an assault with intent to commit murder in the second degree, and the trial court has concurred in such verdict by denying the motion for a new trial, an appellate court will refuse to disturb such ruling when an examination of the evidence discloses that it is amply sufficient to support such verdict.

While the legal effect of evidence or the lack of evidence in its relation to a verdict rendered in a trial may by appropriate proceedings be reviewed by an appellate court, yet conflicts in competent testimony, the weight of legal evidence, and the credibility of competent witnesses are primarily for the determination of the jury; and where there is some substantial competent evidence of all the facts legally essential to support the verdict, and there is nothing in the record to indicate that the jury were not governed by the evidence, a refusel of the trial court to grant a new trial on the ground of the insufficiency of the evidence to sustain the verdict will not be disturbed by the appellate court.

No error is committed in refusing a requested instruction that the wife of the defendant has been sworn as a witness in his behalf. The fact that she is his wife does not exclude her as a witness, and you will judge as to the credibility of her testimony as you would that of other witnesses, when the state had interposed no objection to the wife of the defendant testifying in his behalf, so that point was not involved.

Instructions that pick out and emphasize certain phases of the evidence especially such as relate to isolated facts which are not questioned and are not conclusive of the merits of the case are properly refused.

Neither the guilt nor innocence of an accused should ever be tested by 'probabilities.' An accused therefore has no right to a charge resting his acquittal or conviction upon 'probabilities' of his guilt or innocence.

COUNSEL Bullock & Trantham, of Ocala, for plaintiff in error.

T. F. West, Atty. Gen., and C. O. Andrews, Asst. Atty. Gen., for the State.

OPINION

SHACKLEFORD J.

Z. Graham was indicted for the crime of assault with intent to commit murder, was tried before a jury, was convicted of an 'assault with intent to murder in the second degree,' and was sentenced to confinement in the state prison at hard labor for a period of one year.

The first assignment argued before us is based upon the overruling of the motion for a new trial, and the point urged is the seventeenth ground thereof, which is as follows:

'(17) Because, the issue having been joined between the state and the defendant, and testimony on behalf of the state and the defendant having been produced, and argument on behalf of the defendant having been concluded, the state attorney did, over the objection and protest of defendant's attorney, address and harangue the jury on the fact that the defendant had been convicted of striking a woman with a rifle, which said fact had been stricken from the evidence, using substantially the following words: 'Why this man is a bad man with a rifle. He carries it around and uses it mighty promiscuous. He shoots a man with it from one end and then turns it around and beats a woman over the head with the other end. I am sure glad he don't live in Inverness'--and other words to the same effect, thereby seeking to influence and influencing the minds of the jury with the idea that the defendant was a trouble maker and a lawless man, to the prejudice of the defendant's rights, and with the result that a fair and impartial trial was not had before the said jury.'

We find that the bill of exceptions discloses the following proceedings:

'After the conclusion of the evidence on behalf of the parties, and after argument by the attorneys for the defendant, the state attorney, in addressing the jury, did comment on the fact that the defendant had struck a woman over the head with his rifle. Attorneys for the defendant objected to this method of argument on the ground that there was no evidence before the jury to justify such argument. The court thereupon instructed that counsel must confine their arguments to the testimony adduced before the jury and ruled that the testimony upon which such argument was based had been stricken out. Thereupon the state attorney, later in his address to the jury, again harangued the jury on the fact that defendant had been convicted of striking a woman with his rifle, which said fact had been stricken from the evidence, and over the objection and protest of defendant's attorney, and in disregard of the instructions and ruling of the court, using substantially the following words: 'Why this man is a bad man with a rifle. He carries it around and uses it mighty promiscuous. He shoots a man with it from one end and then turns it around and beats a woman over the head with the other end. I am sure glad he don't live in Inverness'--and other words to the same effect.

'Note (by the Judge): 'I was never more than ten feet away and for never more than a few moments to get some book or paper, and if there was a repetition of the argument it was not called to my attention. I was in the presiding judge's chair in courtroom when state attorney closed his argument. I do not mean to certify that the state attorney 'again harangued the jury that defendant had been convicted of striking a woman with a rifle,' but at the conclusion of the state attorney's argument, on motion of defendant, did instruct the jury in substance to disregard any argument not founded on the evidence and to disregard any such argument.'

While the bill of exceptions is somewhat confusing, it is apparent that the trial judge did not intend to certify that the state attorney had 'again harangued the jury that the defendant had been convicted of striking a woman with a rifle,' after the trial judge had ruled that the testimony upon which such argument was predicated had been stricken, and had instructed the counsel in the case that they must confine their argument to the testimony adduced before the jury. As we held in Bradham v. State, 41 Fla. 541, 26 So. 730:

'It is improper for counsel to add, by his own statement in argument, a material fact, without the authority of evidence, to the testimony as submitted to the jury. A statement of such a fact by counsel not authorized or proven by the evidence should not be allowed to go to the jury. The judge should stop him at once; and if he fails to do so, when requested, and the impropriety is great, and exception is duly taken, it is ground for a new trial.'

Also see the discussion in Newton v. State, 21 Fla. 53; Killins v. State, 28 Fla. 313, 9 So. 711; Clinton v. State, 53 Fla. 98, 43 So. 312, 12 Ann Cas. 150; Adams v. State, 54 Fla. 1, 45...