Johnson v. State
| Decision Date | 20 March 1906 |
| Parties | JOHNSON et al. v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Jackson County; Francis B. Carter, Judge.
Neal Johnson and others were convicted of resisting an officer and bring error. Affirmed.
Syllabus by the Court
Motions to quash indictments, together with the ruling of the court thereon, must be embraced in the record proper, in order that an appellate court may consider an assignment of error based thereon.
In an indictment for resisting or obstructing an officer in the discharge of his duty in carrying a prisoner arrested by him to a proper peace,' the charge of carrying concealed weapons, the elements constituting the offense for which the arrest was made; and it is sufficient to allege the arrest and custody under a charge of carrying concealed weapons and for disturbing the peace in the presence of the officer making the arrest.
Even if the charge of 'disturbing the peace' is not included in the offense of 'breach of the pece,' the charge of carrying concealed weapons, under chapter 4929, p. 57, of the Laws of 1901, is made an offense and a breach of the peace.
An indictment must charge two distinct and independent offenses in order to make the same duplications.
Where there is no suggestion that the indictment is so vague indistinct, and indefinite as to mislead the defendants and embarrass them in the preparation of their defense, or expose them to substantial danger of a new prosecution for the same offense, no error was committed by the trial court, after the conviction of the defendants, in holding the indictment sufficient on a motion in arrest of judgment.
The mere omission of the court to define the phrases 'concealed weapons' and 'disturbance of the peace,' as used in a charge, in the absence of the presentation of correct definitions in a requested instruction, does not constitute error.
An incorrect expression in a charge may be rendered harmless upon a consideration of the whole testimony.
An instruction assuming as true statements of fact that are controverted is properly refused.
Upon an indictment against 'Augustus Hays,' a verdict against August Hase is not a fatal variance.
The verdict is sustained by the evidence.
Price & Watson, for plaintiffs in error.
W. H Ellis, Atty. Gen., for the State.
The plaintiffs in error were convicted in the circuit court for Jackson county of the offense of resisting and obstructing without violence an officer in the discharge of his duty and took a writ of error. The record contains no motion to quash the indictment, therefore the assignment based on the refusal of such motion cannot be considered. Hearn v. State, 43 Fla. 151, 29 So. 433; Houston v. State (Fla.) 39 So. 468.
The denial of a motion in arrest of judgment is assigned as error. Under this assignment it is contended that the indictment is defective, in that it does not sufficiently set forth the acts constituting the alleged disturbance of the peace or the weapon alleged to have been concealed, that the allegations of the indictment are mere conclusions of law, and that the indictment is duplicitous, in that it charges a resistance of an officer and the rescue of a prisoner from lawful custody.
The indictment alleges that the officer, M. O. Tidwell, 'arrested one Will White * * * upon the charge of having a concealed weapon about his person and for a disturbance of the peace, both of which offenses were then and there committed in the presence of said M. O. Tidwell; that * * * Neal Johnson * * * and Augustus Hays * * * and Ben Curry and John Smith, and each of the aforenamed persons, did then and there knowingly and willfully resist, obstruct, and oppose the said M. O. Tidwell, in carrying and conveying the said Will White from the place where he was then under arrest to the justice of the peace office, * * * by then and there forcibly and violently and by threats taking the said Will White from the said M. O. Tidwell and releasing him,' etc.
In an indictment for resisting or obstructing an officer in the discharge of his duty in carrying a prisoner arrested by him to a proper committing magistrate, it is not necessary to allege the elements constituting the offense for which the arrest was made; and it is sufficient to allege the arrest and custody under a charge of carrying concealed weapons and for disturbing the peace in the presence of the officer making the arrest. King v. State, 42 Fla. 260, 28 So. 206. See, also, State v. Dunn, 109 N.C. 839, 13 S.E. 881; Bishop's Directions and Forms, § 840; 1 Archbold's Cr. Pr. 941.
Even if the charge of 'disturbing the peace' were not included in the offense of 'breach of the peace,' there was a charge of carrying concealed weapons, which chapter 4929, p. 57, Acts of 1901, makes an offense and a breach of the peace.
The indictment does not charge the offense of rescuing a prisoner, but charges a resisting and obstructing an officer. The acts of resisting and obstructing alleged embrace acts which may amount to another offense; but the indictment does not charge two distinct and independent offenses, and therefore is not duplicitous. See McGahagin v. State, 17 Fla. 665, text 668; 10 Am. & Eng. Enc. Pl. & Pr. 533. There is no suggestion that the defendants were misled or embarrassed in the preparation of their defense, and the indictment is sufficient after trial on a motion in arrest of judgment. See King v. State, supra; section 2893, Rev. St. 1892; Long v. State, 42 Fla. 509, 28 So. 775; People v. Nash, 1 Idaho, 206; 2 Am. & Eng. Enc. Pl. & Pr. 802; Green v. State, 17 Fla. 669; 1 Bishop's New Crim. Proc. § 443.
It is contended that a charge given by the court and excepted to is erroneous, because the court did not define the terms 'concealed weapons' and 'disturbance of the peace' mentioned in the charge. A mere omission to define words or terms used in a charge is not error. As it does not appear that the deendants presented a proper definition of these terms or either of them and requested that it be given, they cannot complain here. Bynum v. State, 46 Fla. 142, 35 So. 65; Shiver v. State, 41 Fla. 630, 27 So. 36; Blount v. State, 30 Fla. 287, 11 So. 547.
In view of the uncontradicted testimony in this case that the arrest and custody of the prisoner were upon the charge of carrying a pistol concealed on his person, with which he assaulted the officer, who saw the offense committed and arrested him, it cannot be said that the court erred in its charge that the officer had the lawful right to arrest without warrant for a 'disturbance of the peace' committed in the presence...
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