Mathis v. State
|31 March 1903
|MATHIS et al. v. STATE.
|Florida Supreme Court
Error to Circuit Court, Hamilton County; Bascom H. Palmer, Judge.
Luther Mathis and Judson Mathis were convicted of murder, and bring error. Affirmed.
Syllabus by the Court
1. In a criminal, as in a civil, case, it is too late, after a plea to the merits, for the defendant to demand a bill of particulars. While the trial judge would have the right, if he saw fit so to do, to order the filing of a bill of particulars after the plea had been interposed, at any time before the trial is begun, it rests entirely within his discretion, and no error can be predicated upon his refusal so to do.
2. The proper time to interpose a motion for a bill of particulars is before pleading to the merits. In certain classes of cases, such as prosecutions for embezzlement, nuisance barratry, conspiracy to cheat and defraud, libel, under liquor acts, adultery, perjury, bribery, etc., where the counts or charges in an indictment or information are so general in their nature that they do not fully advise the accused of the crime with which he is charged, so that he could prepare his defense, upon a proper showing being made to the trial court by the defendant in a motion verified by affidavit the court has the power to order the furnishing of a bill of particulars by the prosecution, and should do so.
3. An application for a bill of particulars in a criminal case is not founded upon a legal right, but is a matter resting within the sound discretion of the court, depending entirely upon the nature and circumstances of each particular case as they appear to the court before whom the trial is had; and the refusal of the trial judge to grant such a motion will not be disturbed or reversed by an appellate court, unless there was an abuse of such discretion.
4. Motions for bills of particulars in criminal cases should particularly set forth the portions of the indictment or information which the defendant claims to require amplification by bill of particulars, and point out to the court wherein he desires a fuller statement of the facts.
5. Under the system of criminal pleading prevailing in this state, the forms of indictments and informations generally used, we can conceive of but few criminal cases wherein it would be necessary to order a bill of particulars.
6. The better practice is to postpone the swearing in chief of the jurors until the full panel is obtained, so as to allow the longest possible time for peremptory challenges, but, in the absence of a statutory provision, the rule is that the time and manner of swearing jurors in chief, after they have been examined on voir dire and an opportunity given for challenges, are within the sound judicial discretion of the court, the exercise of which will not be disturbed by an appellate court unless clearly abused.
7. While defendants upon trial for crime should be protected in the proper exercise of their right of peremptory challenge yet such right must be seasonably exercised before the jurors are sworn in chief; otherwise it is waived.
8. If the court erroneously overrules a challenge for cause, or erroneously refuses to allow a venireman to answer one of the questions propounded to him, or erroneously sustains objections interposed by the state to certain questions propounded to a venireman, and thereafter the defendant excludes the obnoxious juror by a peremptory challenge, he cannot be injured by such ruling, unless it appears that before the jury was sworn his quiver of peremptory challenges was exhausted.
9. It is within the judicial discretion of the trial court to excuse a venireman, and his ruling will not be disturbed or reversed by an appellate court, unless an abuse of a sound judicial discretion is shown.
10. Where no argument is made concerning errors which have been assigned, such errors will be deemed and treated as abandoned.
11. It is within the sound judicial discretion of the court to control the detailed examination of witnesses, and, unless an abuse of this judicial discretion is shown, an appellate court will not disturb or reverse the ruling made concerning same.
12. The utmost care should be used by the trial judges, especially in cases where human life is involved, not to let any expression fall, either by questions or otherwise, that is capable of being interpreted by the jury as an index of what he thinks of the prisoner, his counsel, or his case.
13. The rule laid down in Hubbard v. State, 37 Fla. 156, 20 So. 235, that section 2920, Rev. St. 1892, requiring the charge of the court in capital cases to be in writing, is mandatory, refers to charges on the merits, given to the jury before they have retired to consider of their verdict, and not to mere directions to the jury as to the form of the verdict which they have already found and presented to the court, finding the defendants guilty of an offense less than capital.
14. Under the provisions of section 1092, Rev. St. 1892, only such charges as were actually given can be excepted to through the medium of a motion for a new trial. Refusals to give requested instructions cannot be excepted to in this manner, but exceptions to such refusals must be taken and noted at the time of such refusals; otherwise they cannot be considered on writ of error.
15. In considering an objection to a portion of a charge, the entire portion bearing on the subject may be considered, and, if the objection be removed when the entire portion is taken together, there is no ground of complaint.
16. There can be an accessory before the fact in the crime of murder in the third degree and in manslaughter.
17. Where an error is assigned to the effect that the court erred in not sustaining the motion for a new trial on a certain enumerated ground thereof, and counsel in his brief under said assignment discusses an entirely different ground, we will treat said error as abandoned.
18. The correctness of a charge on a higher grade of offense than that of which defendants have been convicted becomes immaterial, and no error can be predicated thereon.
19. It is not required that the place where the deceased died should be stated in the indictment.
20. Indictment examined, and held to give the dates, places, and acts with sufficient definiteness to put the defendants upon full notice of the offense with which they were charged therein, and not to be open to attack on the ground of vagueness and indefiniteness.
21. A motion in arrest of judgment is not a proper remedy for a wrong verdict.
22. Evidence examined, and found sufficient to support the verdict.
R. B. Bullock, for plaintiffs in error.
J. B Whitfield, Atty. Gen., for the State.
Judson Mathis, one of the plaintiffs in error, and Lewis Hogans were jointly indicted for murder in the first degree, and in the same indictment Luther Mathis, the other plaintiff in error, was charged with being accessory before the fact of such murder; said indictment being found at the fall term, 1902, of the circuit court for Hamilton county. A severance was granted as to the said Lewis Hogans, and at the same term of court at which the indictment was found the plaintiffs in error, hereinafter referred to as the 'defendants,' were tried together, which said trial resulted in the said Judson Mathis being convicted of murder in the third degree, and the said Luther Mathis of being accessory before the fact, and each of said defendants was sentenced to be confined in the state prison at hard labor for a term of 20 years. From this judgment and sentence the defendants seek reversal by writ of error.
The first assignment of error is that 'the court below erred in refusing to grant the motion of the plaintiff in error Luther Mathis for a bill of particulars.'
In order to properly understand the motion referred to in said assignment it is advisable to set forth the indictment as well as said motion. Omitting the formal parts the indictment reads as follows: ...
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