Mccoggle v. State

• Decision Date: 18 July 1899
• Parties: McCOGGLE v. STATE.
• Court: Florida Supreme Court

26 So. 734

41 Fla. 525

McCOGGLE v. STATE.

Florida Supreme Court

July 18, 1899

Error to circuit court, Madison county; John F. White, Judge.

Peter McCoggle was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where a single general exception is made to embrace two or more instructions given upon different propositions of law such exception is not available before an appellate court, if any one of the instructions embraced therein is correct.

2. When an assignment of error is predicated upon the giving, or refusal to give, more than one instruction, asserting distinct propositions of law, an appellate court will go no further in the consideration of such an assignment, after it has ascertained that the court correctly gave, or refused to give, any one of the instructions thus aggregated in the single assignment of error.

3. The court refused to give the following instruction on reasonable doubt: 'If the jury are not satisfied beyond a reasonable doubt, to a moral certainty, and to the exclusion of every other reasonable hypothesis but that of the defendant's guilt, they should find him not guilty; and it is not necessary to raise a reasonable doubt that the jury should find from all the evidence a probability of the defendant's innocence, but such a doubt may arise even when there is no probability of his innocence in the testimony; and, if the jury have not an abiding conviction to a moral certainty of his guilt, it is the duty of the jury to find the defendant not guilty.' Held, that its refusal was not error, because it is too involved, and calculated to confuse and mislead.

4. Trial courts have a broad discretion in directing the course of a trial, and over the order of the introduction of evidence and the examination of witnesses, and the exercise of this discretion will not be reviewed, except in cases of abuse. Held, that it was no abuse of such discretion to permit the state's attorney to recall, for further cross-examination, a witness for the defense who had been examined in chief, cross-examined, and dismissed from the witness stand, and this, after other witnesses for the defense had been examined.

5. When the record shows that the defendant was personally present in court when the taking of evidence was concluded, when the arguments of counsel were in progress, and at the time of the retirement of the jury to consider their verdict, and that the verdict was rendered on the same day, without any recess of the court being shown in the meantime, the presumption is that the defendant continued to be and was present at the rendition of the verdict.

COUNSEL C. J. Hardee, for plaintiff in error.

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

OPINION

TAYLOR C.J.

The plaintiff in error was indicted, tried, and convicted at the fall term, 1898, of the circuit court of Madison county, of the crime of murder of one Will Smith and, upon the jury's recommendation to mercy, was sentenced to imprisonment in the penitentiary for life, from which sentence he takes writ or error.

The errors assigned are as follows:

(1) The verdict of the jury was contrary to the evidence and the weight of evidence.

(2) The verdict of the jury was contrary to law.

(3) The verdict was contrary to the charge of the court.

(4) The court erred in giving those portions of its charge marked '1,' '2,' '3,' '4,' '5,' and '6,' herewith filed, marked '1,' '2,' '3,' '4,' '5,' and '6.'

(5) The court erred in refusing to give charge No. 1, at the request of defendant's attorney, a copy of which is herewith filed, marked 'No. 1.'

(6) The court erred in allowing the state's attorney, over defendant's objection, to call J. W. Bishop, a witness for the defendant, back to the witness stand, and cross him after he had given his testimony in chief, had been crossed by the state's attorney to his satisfaction, and had been excused from the witness stand, and a number of other witnesses examined.

(7) The court erred in overruling defendant's motion for a new trial on the grounds set forth therein.

(8) There was never an indictment filed in open court against the defendant.

(9) The defendant was not present in court during the entire trial.

(10) The defendant was not present in court when the jury came into court and rendered their verdict in the cause.

(11) The jury that tried the case was not sworn according to law.

The eighth assignment of error is not argued or presented here, and will consequently be treated as abandoned, as, indeed, it should have been, since the record before us shows that it is unfounded in fact. The other assignments of error will be discussed in the order in which they are presented in the briefs of counsel for the plaintiff in error.

It is first contended that the evidence is not sufficient to sustain the verdict of conviction. there was serious conflict between the evidence of the witnesses for the prosecution and those for the defense, but we cannot say that there was such a preponderance of evidence in favor of acquittal as would justify us in declaring that the verdict of conviction found was induced by influences dehors the evidence, or that the jury, in arriving at such verdict, went outside the bounds of their legitimate province of reconciling conflicts in the evidence or in adjudging the credibility of the witnesses. The testimony for the state sustains the conviction. The jury, by their verdict, seem to have given credence to it, and to have disbelieved that of the defense that was in conflict with it. Under these circumstances, and in the absence of any such overwhelming preponderance in the evidence for the defendant as would lead reasonably to the conclusion that the verdict was induced by influences outside of the evidence, an appellate court cannot properly upset the jury's finding, or the trial judge's refusal to disturb it, on the motion made for new trial. Green v. State, 17 Fla. 669; Williams v. State, 20 Fla. 391; Browning v. State, 41 Fla. ----, 26 So. 639.

The fourth assignment of error is as follows: 'The court erred in giving those portions of its charge marked '1,' '2,' '3,' '4,' '5,' and '6,' herewith filed, marked '1,' '2,' '3,' '4,' '5,' and '6," These instructions were not excepted to at the time they were given, but were excepted to as provided for by section 1092, Rev. St by being made a ground of the defendant's motion for a new trial. The single ground of the motion for new trial embracing them is in exactly the same form as the above-quoted assignment of error thereon, and must be regarded as a single general exception. Referring to the record for the charges thus excepted to, we find that the single general exception thus made embraces six several instructions upon different propositions of law. The well-settled rule here is that, where the charge of the court to the jury embraces several distinct propositions, a single general exception to the charge so given is not available if any one of the propositions is correct. ...