Knight v. State

• Decision Date: 04 March 1902
• Citation: 32 So. 110,44 Fla. 94
• Parties: KNIGHT v. STATE.
• Court: Florida Supreme Court

32 So. 110

44 Fla. 94

KNIGHT v. STATE.

Florida Supreme Court

March 4, 1902

Error to circuit court, Alachua county; William A. Hocker, Judge.

William J. Knight was convicted of assault with intent to kill, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where the ruling upon demurrer to a plea in abatement was held to be free from error upon writ of error taken to the appellate court, such ruling is not open for reconsideration upon a subsequent writ of error in the same case sued out in behalf of the same party, though upon the former writ of error the judgment was reversed for other errors found.

2. It is discretionary with the trial court whether it will permit the plea of not guilty in a criminal case to be withdrawn in order to allow a plea in abatement to be filed.

3. Neither a battery nor a wounding is an essential element of the offenses denounced by section 2403, Rev. St.

4. An indictment alleging that one W. J. K., in a named county and upon a named date, 'in and upon one B. B., with a deadly weapon, to wit, a certain pistol, which was then and there loaded with gunpowder and leaden bullets, and by him, the said W. J. K., then and there had and held in his hand unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said B. B did make an assault, and he, the said W. J. K., did then and there unlawfully, feloniously, of his malice aforethought and from a premeditated design to effect the death of the said B. B., shoot off and discharge the said pistol, so loaded with gunpowder and leaden bullets aforesaid, at and upon the said B. B., with intent then and there unlawfully feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said B. B., to kill and murder the said B. B., contrary to the form of the statute,' etc., sufficiently charges the offense of assault with intent to commit the felony of murder in the first degree.

5. Parties to a cause have no absolute right to dictate the order in which their requested instructions shall be given; for example, that they shall be given immediately before or immediately after the general charge of the court or the instructions given at the request of the opposite party. The matter lies in the discretion of the court; and if this discretion can be controlled by an appellate court at all, it is only in cases where the discretion is abused.

6. Where a portion of the charge of the trial court is excepted to and assigned as error, the appellate court, in considering such assignment, will look to the entire charge, and if the portion objected to, when read in connection with the balance of the charge, is not erroneous or misleading, such assignment must fail, even though the portion objected to, if it stood alone, would be erroneous or misleading.

7. Evidence examined, and found sufficient to support the verdict.

COUNSEL B. A. Thrasher, for plaintiff in error.

William B. Lamar, Atty. Gen., for the State.

OPINION

CARTER, J.

At the spring term, 1900, of the circuit court of Alachua county plaintiff in error was tried and convicted upon an indictment found at that term, charging an assault with intent to commit the felony of murder in the first degree. Before pleading in bar defendant filed pleas in abatement, which, upon the state's demurrer, were held bad. From the sentence imposed a writ of error was taken to this court, where the judgment was reversed and a new trial awarded for error found in an instruction given by the court at the trial. Knight v. State, 42 Fla. 546, 28 So. 759.

Thereafter, at the spring term, 1901, defendant moved the court for leave to withdraw the plea of not guilty, and for permission to file a plea in abatement. This motion was overruled, and defendant excepted. During the same term defendant filed his motion to quash the indictment upon the following grounds: (1) It is vague, indefinite, and uncertain; (2) it does not charge the offense in the language of the statute; (3) it charges no offense against the laws of Florida; (4) it does not set forth the name, or particularize the manner of the commission, of the offense claimed to have been committed; (5) it does not charge how, or in what manner, or at what place, or upon what portion of the person of Ben Brown the defendant shot off and discharged the pistol; (6) it does not set forth the offense sufficiently plain to enable defendant to properly make his defense thereto; (7) it is not so framed, nor is the offense sufficiently specified and described, as that defendant would be able or permitted to plead former jeopardy; (8) it is not so grounded, nor is the offense sufficiently specified or set forth, as that defendant would be able or permitted to plead autrefois acquit. This motion was overruled. Thereafter, at the same term, a trial was had, and the jury rendered their verdict finding defendant guilty of an assault with intent to commit manslaughter, and recommending him to the mercy of the court.

From the bill of exceptions it appears that after the parties had concluded their testimony the defendant requested the court, in writing, 'to give certain instructions in behalf of defendant, after giving the charges for the state'; that the court gave such requested instructions, before any other charges were given, and then proceeded to give the jury certain instructions set out in the bill of exceptions of his own motion. The requested instructions so given are not incorporated in the transcript of the record or bill of exceptions, and it does not appear that any instructions were requested on behalf of the state. The defendant excepted to the action of the court in giving his requested instructions prior to giving those on its own motion. By the charges numbered 1 to 6, given by the court of its own motion, the jury were instructed that the indictment against defendant embraced the charges of an assault, an assault with intent to commit murder in the first degree, an assault with intent to commit murder in the second degree, an assault with intent to commit manslaughter, and an aggravated assault, and each of these offenses was fully defined. Then follows the seventh instruction, by which the jury are told that if they believe from the evidence that the defendant assaulted Brown with a deadly weapon, to wit, a pistol, and shot and wounded him, then they should next examine the evidence to discover if Knight was justifiable or excusable in such shooting. The circumstances under which the act would be justified or excused in law are then stated with particularity, and the instruction then proceeds as follows: 'If the jury, after examining the evidence, are satisfied beyond a reasonable doubt that the defendant, Knight, assaulted Ben Brown with a deadly weapon, to wit, a pistol, and shot and wounded him therewith, in Alachua county, Florida, and within two years before the finding of this indictment, and that he was not justifiable or excusable in doing so, then the jury should convict the defendant of either assault with intent to murder in the first degree or assault with intent to murder in the second degree, or assault with intent to commit manslaughter, or of aggravated assault, according as they may determine that the facts in evidence make out one or other of these offenses, as I have defined them in the foregoing charges.' By instructions Nos. 8 and 9 the court defined a reasonable doubt, told the jury that defendant was presumed to be innocent until proven guilty beyond a reasonable doubt, and that he was entitled to the benefit of every reasonable doubt, and that the jury were the sole judges of the credibility of the witnesses and of the weight and sufficiency of the evidence.

The defendant moved for a new trial upon the following grounds: (1) The verdict is contrary to the evidence and the weight of the evidence; (2) the verdict is contrary to the law and the charge of the court; (3) the court erred in refusing to give the instructions asked for by defendant, after the court had given the charges for and in behalf of the state; (4) the court erred in giving instruction No. 7; (5) the court erred in giving that portion of instruction No. 7 specially quoted above. This motion was overruled, and an exception taken.

Thereafter in due course, the defendant moved in arrest of judgment upon grounds questioning the sufficiency of the indictment, which motion was overruled. Most of the grounds of this motion are substantially the same as grounds embraced in the motion to quash; but other grounds...