Kloss v. State

• Decision Date: 09 March 1928
• Parties: KLOSS et al. v. STATE.
• Court: Florida Supreme Court

116 So. 39

95 Fla. 433

KLOSS et al. v. STATE.

Florida Supreme Court, Division A.

March 9, 1928

Error to Circuit Court, Pinellas County; Freeman P. Lane, Judge.

Dave S Kloss, Jr., and Stephen A. Guilfoyle were convicted or robbery, and they bring error.

Reversed.

Syllabus by the Court

SYLLABUS

Assignments of error, not argued, are considered abandoned. Assignments of error, not argued, are considered as abandoned.

Each alleged error of which complaint is made on appeal should be clearly and distinctly specified and separately assigned single assignment of error, attacking several rulings, is unavailing, unless all grouped en masse are erroneous. In preparing assignments of error, each alleged error of which complaint is made should be clearly and distinctly specified and separately assigned. Where a single assignment attacks a plurality of rulings, whether upon the pleadings, admission or rejection of evidence or the granting or refusal of instructions to the jury, it will be unavailing unless all such rulings, grouped en masse, are erroneous.

Where trial judge's error practically impairs defendant's constitutional right to be heard by counsel, conviction will be reversed, although error may be grouped with others not argued; trial judge's reproachful comments before jury concerning lawyers held to require reversal of conviction for robbery. Where an inspection of the record reveals an error committed by the trial judge of such degree of serious injury to the accused as practically to impair his right to the benefits secured to him by the Constitution of being heard by counsel, the judgment complained of will be reversed although the error may have been grouped with others not argued.

COUNSEL

Kelly & Casler, of Clearwater, for plaintiffs in error.

Fred H. Davis, Atty. Gen., and Roy Campbell, Asst. Atty. Gen., for the State.

OPINION

ELLIS C.J.

The plaintiffs in error were convicted of robbery, and sentenced to a term of years in the state prison. There were motions for a new trial and in arrest of judgment. Both motions were overruled, and the defendants took a writ of error.

There are nineteen assignments of error, eight of which are not argued, and are therefore treated as abandoned. See Lamb v. State, 50 Fla. 106, 38 So. 906; Mathis v. State, 45 Fla. 46, 34 So. 287.

The fourth, fifth, sixth, and seventh assignments are grouped in the brief, but they present but one question, which is, Was the evidence sufficient to support the verdict? Under this head, counsel in their brief discuss the twenty-ninth ground of the motion for a new trial which attacks certain charges given by the court. Seven charges are thus attacked; none of them is made the subject of an assignment of error.

Counsel, however, discuss the propriety of a certain charge not made the basis of an assignment of error, under assignments resting upon propositions wholly different and in no wise related except as having occurred in the same case. One cardinal rule relating to appellate practice in this state, which has received at the hands of this court as much notice as any one other perhaps, is that, in preparing assignments of error, each error relied upon should be clearly and distinctly specified and separately assigned, and that, where a single assignment attacks a plurality of rulings of the trial court, whether upon the pleadings, the admission or rejection of evidence, or the granting or refusal of instructions to the jury, it will be unavailing unless all such rulings so grouped en masse are erroneous. This rule makes for celerity and accuracy in the disposal of this court's business, and it seems that the long list of decisions by this court referred to in the books would be sufficient notice to the bar of its existence.

We will not consider the assignments above mentioned nor that portion of the brief under them, not only because the rule referred to has not been observed, but for the further reason that the instructions criticised were, with the exception of one, sound in law and appropriate to the case.

One of the instructions numbered 6 in the motion for a new trial, and one of those grouped under the twenty-ninth ground of the motion, merits the reproachful comments made by counsel. In the charge criticised, the trial judge said to the jury that:

'Another matter of vital importance here, gentlemen, and to which I desire to call your attention, is that lawyers are a necessary evil to a certain extent; they are engaged by their respective clients to represent their clients' interest in court; lawyers usually look through the glasses furnished by their clients, and naturally, if they are good advocates, they see the facts from the direction of their clients, and, in their earnest and serious effort to protect the interests of their clients, they are not as liable to remember all of the little details in relation to the testimony that might affect their clients, as you gentlemen of the jury are; and I therefore say to you that, in weighing the evidence in this case, while the lawyers are of great importance in helping you to marshal the evidence and get the idea in your heads as

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