Lindsey v. State
| Decision Date | 05 February 1907 |
| Citation | 53 Fla. 56,43 So. 87 |
| Parties | LINDSEY v. STATE. |
| Court | Florida Supreme Court |
Error to Circuit Court, Santa Rosa County; Francis B. Carter Judge.
Pleas Lindsey was convicted of assault with intent to commit manslaughter, and brings error. Affirmed.
Syllabus by the Court
Where a special instruction requested by the defendant to be given by the court, as evidenced by the bill of exceptions in the transcript of the record, differs materially from the instruction as it appears in the assignments of error, an appellate court must take the instruction as it appears in the bill of exceptions, and not as it is written in the assignments of error.
It is the settled practice in this state that if a party wishes to avail himself of the omission of the court to charge the jury on any point in the case, or on all the grades of homicide to which the evidence is reasonably applicable, he must ask the court at the time to give the instruction desired, by writing out the instruction desired and presenting same to the judge otherwise, he will not be permitted to assign the omission to so charge as error.
If a minor offense is not necessarily included within the terms of the greater offense as set forth in the indictment or information, the defendant cannot be convicted of such minor offense; and it is not error for the trial court to refuse to give in charge to the jury the law applicable to the minor offense.
The gist of the offense of the crime of assault with intent to murder in the first degree consists in the intent with which the alleged assault is made.
It is not necessary to the crime of assault with intent to murder under section 2403, Rev. St. 1892, and section 3230, Gen. St 1906, that the assault be made with a deadly weapon; neither is it necessary that the indictment charge the commission of the assault to have been made with a deadly weapon.
The gist of the offense of an aggravated assault, under section 2402, Rev. St. 1892, and section 3228, Gen. St. 1906, consists in the character of the weapon with which the assault is made.
In a prosecution for aggravated assault, an assault with a deadly weapon must be alleged and proved; but the intent with which the assault was made, whether to wound or to injure, or whether the assault was made with any particular intent, is immaterial, unless the intent should amount to an intent to kill or a premeditated design to effect death, in which case the assaulting party would be guilty of an assault with intent to commit manslaughter or murder.
Whoever assaults another with a deadly weapon, not having a premeditated design to effect death, and not having any intent to take life, is guilty of aggravated assault.
Under an indictment or information for an assault with intent to commit murder in the first degree, which does not charge that the assault was made with a deadly weapon, the defendant cannot be convicted of an aggravated assault.
The court charged the jury in part as follows: Held, this instruction is not erroneous for the reason that it showed the jury that the court was of the opinion that the defendant should be convicted. Neither was the instruction erroneous because it tended to cause the jury to disregard the presumption of innocence of the defendant, especially where the court charged the jury fully upon the presumption of innocence.
It is not objectionable for the court to call the attention of the jury to the fact that they are to try the case by the evidence given to them, and not by their sympathies, or by the consequences to the defendant or his family. The words of a charge: 'Neither would it be a defense that the party assaulted was not the proper kind of a man; that is to say, that he himself may have been a violator of the law'--did not mislead or confuse the jury as to the law of self-defense, especially where the court charged the jury fully upon the law of self-defense.
Where there was evidence legally sufficient to support the verdict, the appellate court will not reverse a ruling of the trial court refusing a new trial on the ground of insufficient evidence, even though there be conflict in the evidence, unless the preponderance is such that the jury must have been improperly influenced to render the verdict.
Daniel Campbell & Son and T. F. West, for plaintiff in error.
W. H. Ellis, Atty. Gen., for the State.
The plaintiff in error, hereinafter referred to as the 'defendant,' was indicted at the fall term, 1906, of the circuit court in and for Santa Rosa county for an assault with intent to commit murder in the first degree. On the 26th day of September, 1906, he was tried and convicted of an assault with intent to commit manslaughter. He was sentenced to the state prison for five years, and seeks a reversal of this judgment by writ of error.
There are four assignments of error. The first and second errors assigned have been argued and will be considered together. They are: '(1) The court erred in refusing to give special instruction No. 1, requested by the attorney for the defendant in the court below, which was as follows: 'If you should find from the evidence that the defendant unlawfully assaulted Dove Lindsey with a deadly weapon, but that in so doing he had no premeditated design to effect death, nor intent to kill, you would find defendant guilty of an aggravated assault.'
'(2) The court erred in not charging the jury the law as to aggravated assaults.'
We cannot discover from the transcript of the record that the defendant ever requested the court to give the instruction as set out in the first assignment of error, and therefore we cannot consider it. Special instruction No. 1, requested by the defendant in the court below, as it is evidenced to us by the bill of exceptions in the transcript of the record before us, reads as follows: 'If you should find from the evidence that the defendant unlawfully assaulted Dove Lindsey with a deadly weapon, but that in so doing he had no premeditated design to effect death, nor intent to kill, you would find the defendant not guilty of an aggravated assault.'
The refusal of the court to give the last quoted charge is not assigned as error, or no assignment based thereon is argued, and therefore we cannot consider whether the court erred in refusing to give this charge. Indeed, counsel for plaintiff in error do not contend here that the charge as set forth in the bill of exceptions ought to have been given by the court. They have proceeded in argument as if the special instruction No. 1 requested by the defendant reads just as it appears in the first assignment, and that in that shape it should have been given. But we must take the charge as it is duly evidenced to us in the bill of exceptions, and not as we find it written in the assignment of errors. The two charges, one in the bill of exceptions and the other in the first assignment of errors, are materially different. The difference between the two charges is not patently a clerical error. We cannot say that the appearance of the word 'not' in the last line of the charge as it appears in the bill of exceptions is a misprision of the clerk of the court in the preparation of the transcript of the record. Therefore we must take the special instruction No. 1, as it appears in the bill of exceptions, as being the instruction requested by the defendant in the court below.
Under the second assignment of error, the plaintiff in error tries to present the same question sought to have been raised by the first assignment of error, namely, that the court ought to have given a charge on the law as applied to an aggravated assault like the instruction set forth in the first assignment of errors; and the suggestion is made that such a 'charge ought to have been given by the court sua sponte.' It is the settled practice in this state, however, that if a party wishes to avail himself of the omission of the court to charge the jury on any point in the case, or on all the grades of homicide to which the evidence is reasonably applicable, he must ask the court, at the time, to give the instruction desired, by writing out the instruction desired and presenting same to the judge; otherwise, he will not be permitted to assign the omission to so charge as error. Irvin v. State, 19 Fla. 872; Lovett v. State, 30 Fla. 142, 11 So. 550, 17 L. R. A. 705; Blount v. State, 30 Fla. 287, 11 So. 547. The defendant having written out the instruction he desired to have the court give on the grade of the offense of an aggravated assault, he cannot now assign as error the failure of the court to give some other instruction which the defendant did not ask the court to give, but which he thinks now the court ought to have given.
The trial court, however, seems not to have noticed the presence of the word 'not' in the charge. The court denied the special instruction No. 1 'because the offense of aggravated assault was not charged in the indictment, no deadly weapon being charged,' thereby seeming to have regarded the instruction, as counsel have, as it is written in the first assignment of errors. For this reason we will so...
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