Hand v. State, s. 35776

• Decision Date: 17 May 1967
• Docket Number: 35774,Nos. 35776,s. 35776
• Citation: 199 So.2d 100
• Parties: Bobby Ray HAND, Petitioner, v. STATE of Florida, Respondent. Bennie RAULERSON, Petitioner, v. STATE of Florida, Respondent.
• Court: Florida Supreme Court

Page 100

199 So.2d 100

Bobby Ray HAND, Petitioner, v. STATE of Florida, Respondent.

Bennie RAULERSON, Petitioner, v. STATE of Florida, Respondent.

Nos. 35776, 35774.

Supreme Court of Florida.

May 17, 1967.

T. Edward Austin, Jr., Public Defender, and Charles J. Franson, Asst. Public Defender, for petitioners.

Earl Faircloth, Atty. Gen., David U. Tumin and Stanley D. Kupiszewski, Jr., Asst. Attys. Gen., for respondent.

ERVIN, Justice.

By petitions for writs of certiorari we are requested to review two decisions of the District Court of Appeal, First District, next hereinafter cited. Due to the fact that the primary question of law presented in each case is basically identical, the two cases are consolidated and reviewed together.

In Hand v. State (Fla.App.), 188 So.2d 364, the Petitioner was charged with and convicted of robbery in the Criminal Court of Record of Duval County. During trial Petitioner's attorney orally requested a jury instruction on the lesser included offense of larceny. The trial judge refused to charge the jury concerning the offense of larceny. The District Court of Appeal, First District, affirmed the trial court and in doing so stated:

'It seems to us, however, that in the case at bar evidence was not reasonably susceptible of an inference by the jury that the articles stolen from Irons were taken without force, violence, assault, or putting in fear.' (at 365)

In the case of Raulerson v. State (Fla.App.1966), 188 So.2d 586, the Petitioner was informed against for robbery. At the conclusion of the trial evidence the Petitioner made written request that the trial judge instruct the jury on the lesser included offenses of grand larceny and petit larceny. This request was denied and the Petitioner assigned error. The District Court of Appeal, First District, affirmed as follows:

'Affirmed on authority of this court's decisions in Allison v. State, 162 So.2d 922 (1964), Stewart v. State, Fla.App., 187 So.2d 358, opinion filed June 14, 1966, and Hand v. State, Fla.App., 188 So.2d 364 * * *'

Thus we are presented with the question of whether the trial judges erred in both cases in their refusals to give the requested charges on the lesser included offense of larceny.

There is authority supporting the proposition that a trial court is not in error in refusing to instruct the jury on the lesser included offense of larceny when the court is of the opinion the evidence adduced is not reasonably susceptible of inference by the jury that the articles involved were taken from the victim without force, violence, assault, or putting in fear. See, for example, Brown v. State, Fla.App., 191 So.2d 296, and Silver v. State, Fla.App., 174 So.2d 91. We do not, however, agree with this view, although it has been advanced and even prevailed in appellate decisions in our state. The giving of such instruction should not hinge upon whether the trial court believes the evidence is susceptible of inference by the jury that the defendant is guilty of the lesser offense and not of the greater offense charged. In our opinion such judicial determination at trial level obviously takes a most critical evidentiary matter from the proper province of the jury and vests it improperly as a matter of law with the trial judge. Would it be, we ask hypothetically, consistent with trial fairness to allow the state to charge a person with robbery and in the event of acquittal bring him back into court for another trial on a subsequent charge of larceny which stemmed solely from the commission of the robbery offense originally charged? We answer in the negative. Such a defendant being tried for robbery should upon timely request be permitted to have an instruction on larceny, a necessarily included element of robbery both in statutory definition and in general law, given to the jury for its consideration.

Our approach to this question involves the concept of due process of law and trial fairness. It is also involved in the procedure contemplated by our Florida Statutes in such cases. Chapter 919, Florida Statutes, F.S.A., entitled 'Conduct of Jury,' contains two sections, 919.14 and 919.16, which are of critical import to the instant situation. Section 919.14 reads as follows:

'Determination of degree of offense.--If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.'

This section is clearly a mandatory direction to give instructions to the jury on all degrees of the offense charged in an indictment or information if said offense is one which is statutorily divided into degrees. The purpose of such direction is to have the jury instructed as to all degrees of such offenses irrespective of whether the trial judge considers them supported by reasonable inferences from the trial evidence. By analogy, the purpose of F.S. Section 919.14, F.S.A. supports the position we take in these cases. In Brown v. State, 124 So.2d 481, we said:

'This Court is now definitely committed to the rule that wherever evidence is sufficient to sustain a charge of murder in the first degree, whether committed in the perpetration of certain felonies or whether from a specific premeditated design a verdict convicting a defendant of a lesser degree of homicide will not be disturbed even though there is no evidence of the particular degree of the offense for which he might be convicted. We have taken the view that the responsibility of determining the degree of guilt in such cases Rests peculiarly within the bosom of the trial jury. Killen v. State, Fla., 92 So.2d 825.' (at 483, ...