Holloman v. State

• Decision Date: 15 September 1939
• Citation: 191 So. 36,140 Fla. 59
• Court: Florida Supreme Court
• Parties: HOLLOMAN v. STATE.

191 So. 36

140 Fla. 59

HOLLOMAN v. STATE.

Florida Supreme Court, Division B.

September 15, 1939

Error to Circuit Court, Hamilton County; Hal W. Adams, Judge.

John Holloman was convicted of murder in the second degree, and he brings error.

Reversed and remanded.

COUNSEL

G. Warren Sanchez, of Live Oak, for plaintiffs in error.

George Couper Gibbs, Atty. Gen., and Thomas J. Ellis, Asst. Atty Gen., for the State.

OPINION

PER CURIAM.

The plaintiff in error, defendant below, was tried in Hamilton County under an indictment for murder in the second degree. The jury returned a verdict of manslaughter and thereupon the Court adjudged the defendant guilty of murder in the second degree, sentencing him to five years in the State prison. The plaintiff in error assigns as the sole error of the Court below: 'The court erred in overruling and denying the Defendant's motion for a new trial.' In considering this assignment of error the plaintiff in error presents three questions to this Court for determination.

The first question challenges the sufficiency of the evidence to sustain the conviction of the defendant.

The indictment in the instant case charges the defendant with murder in the second degree. The jury returned a verdict of manslaughter. Chapter 4392, Acts 1895, Section 8415, C.G.L of Florida of 1927 provides:

'In all criminal prosecutions hereafter begun in this State, if the defendant be found guilty of an offense lesser in degree, but included within the offense charged in the indictment or information, such verdict shall not be set aside by the court, upon the ground that such verdict is contrary to the evidence, if the evidence produced in such case would have supported a finding, or if such court would have sustained a verdict of guilty of the greater offense.'

In view of this Statute this Court has repeatedly held that where the defendant is convicted of a lesser offense included within the higher offense charged in the indictment of information, the verdict will not be set aside as contrary to the evidence, if the evidence would have supported a conviction of the greater offense. See McCoy v. State, 40 Fla. 494, 24 So. 485; Mobley v. State, 41 Fla. 621, 26 So. 732; Morrison v. State, 42 Fla. 149, 28 So. 97; Dedge v. State, 68 Fla. 240, 67 So. 43; Larmon v. State, 81 Fla. 553, 88 So. 471; Ammons v. State, 88 Fla. 444, 102 So. 642; Roberts v. State, 94 Fla. 149, 113 So. 726; Williams v. State, 73 Fla. 1198, 75 So. 785; Clark v. State, 88 Fla. 186, 101 So. 352; Lovett v. State, 95 Fla. 269, 116 So. 7; Jenkins v. State, 100 Fla. 1599, 132 So. 198.

Likewise this Court has held that an indictment or information sufficiently charging murder in the second degree includes a charge of manslaughter. Sallas v. State, 61 Fla. 59, 54 So. 773. The information in the present case charging murder in the second degree, therefore, included the charge of manslaughter.

The evidence herein has been thoroughly examined and found sufficient to support a conviction of murder in the second degree; therefore, the verdict of manslaughter cannot, under the above section of our statutes, be disturbed by this court. See the above cited cases.

The second question involves instructions to the jury. The plaintiff in error contends that it was error to allow the codefendant to testify at the trial in prison clothes without instructing the jury that the co-defendant was serving sentence for a conviction of another crime and that he had not previously been convicted of the offense with which this defendant was charged.

The record fails to show that the plaintiff in error presented any request, written or otherwise, for instructions by the Court on this phase of the trial. Hence, the Court below has had no opportunity to consider the instruction contended for and will not be held in error where the instructions actually given are not contested and put in the record so that this Court might fully consider them. See Marlowe v. State, Fla., 190 So. 602, Decision rendered on July 18, 1939; Rawlins v. State, 40 Fla. 155, 24 So. 65; Douglass v. State, 53 Fla. 27, 43 So. 424; Padgett v. State, 64 Fla. 389, 59 So. 946, Ann.Cas. 1914B, 897; Gillyard v. State, 65 Fla. 322, 61 So. 641; Hicks v. State, 75 Fla. 311, 78 So. 270; Hobbs v. State, 77 Fla. 228, 81 So. 444; Turner v. State, 99 Fla. 246, 126 So. 158; Irvin v. State, 19 Fla. 872; Lindsey v. State, 53 Fla. 56, 43 So. 87; Tindall v. State, 99 Fla. 1132, 128 So. 494.

The third question presented to this Court has reference to certain remarks of the prosecuting attorney; but there is nothing in the record to show what those remarks were.

The argument to the jury is not reported and the allegations in the motion are not self-proving so there is no showing that the statement was made. See Smith v. State, 90 Fla. 555, 106 So. 415; Noble v. State 68 Fla. 1, 66 So. 153; Stanley v. State, 93 Fla. 372, 112 So. 73.

The case will, however, have to be reversed and remanded to the lower court. It is well settled in this jurisdiction that:

'While, generally speaking, the consideration of the appellate court will be confined to the errors assigned and argued by the plaintiff in error; yet, to this rule there are certain exceptions. Where a jurisdictional or other fundamental error of law is apparent on the face of the record itself, such error may be considered by the appellate court, though it is not assigned. Demeter Land Co. v. Florida Public Service Corp., 99 Fla. 954, 128 So. 402; Hoodless v. Jernigan, 46 Fla. 213, 35 So. 656; Parker v. Dekle, 46 Fla. 452, 35 So. 4; East Coast Stores v. Cuthbert, 101 Fla. 25, 133 So. 863; Bynum v. State, 76 Fla. 618, 80 So. 572; White v. Crandall, 105 Fla. 70, 137 So. 272, 143 So. 871; Gunn v. State, 78 Fla. 599, 83 So. 511; O'Steen v. State, 92 Fla. 1062, 1066, 1075, 111 So. 725; Gober v. Braddock, 100 Fla. 1406, 131 So. 407.'

The jury in this case returned a verdict of manslaughter; whereas the Court pronounced judgment and sentence for murder in the second degree. The judgment of the Court must conform to the verdict of the jury. See Hughes v. State, 86 Fla. 202, 97 So. 478; Ellis v. State, 100 Fla. 27, 129 So. 106, 69 A.L.R. 783; Vogel v. State, 124 Fla. 409, 168 So. 539.

This error on the part of the lower Court does not, however entitle the plaintiff in error to a new trial; but the case will have to be remanded for the pronouncement of proper judgment and sentence. See Keech v. State, 15 Fla. 591; Roberts v. State, 30 Fla. 82, 11 So. 536; Wallace v. State, 41 Fla. 547, 26 So. 713; Irvin v. State, 52 Fla. 51, 41 So. 785, 10 Ann.Cas. 1003; Jones v. State, 64 Fla. 92, 59 So. 892, L.R.A.1915B, 71; Hunter v. State, 64 Fla. 315, 60 So. 786; Taylor v. State, 67 Fla. 127, 64 So. 454; Smith v. State, 71 Fla. 639, 71 So. 915; Poyner v. State, 81 Fla. 726, 88 So. 762; Cooper v. State, 83 Fla. 34, 90 So. 693, 23 A.L.R. 109; Brooke v....