Mccray v. State

• Decision Date: 10 March 1903
• Citation: 45 Fla. 80,34 So. 5
• Parties: McCRAY v. STATE.
• Court: Florida Supreme Court

34 So. 5

45 Fla. 80

McCRAY v. STATE.

Florida Supreme Court, Division A.

March 10, 1903

Error to Circuit Court, Alachua County; William S. Bullock, Judge.

James McCray was convicted of larceny, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Section 1088, Rev. St. 1892, providing for the direction of a verdict by the trial judge applies only to civil cases, and does not extend to criminal trials. Boykin v. State, 24 So. 141, 40 Fla. 484, approved and followed.

2. While the trial judge would have the right, after all the evidence in a criminal case had been submitted, if he was clearly satisfied that all of said evidence would not warrant or support a verdict of guilty, to instruct the jury to acquit, this is a matter resting entirely within the discretion of the judge, and no error can be predicated upon his failure or refusal so to do.

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

COUNSEL

C. C. Thomas, for plaintiff in error.

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

OPINION

SHACKLEFORD J.

At the spring term, 1902, of the circuit of Alachua county, the plaintiff in error (hereinafter referred to as the defendant) was indicted, tried, and convicted of the crime of larceny of one book of cash checks or certificates of the value of $50 and was sentenced to be confined at hard labor in the state prison for the period of two years. A reversal of this judgment is sought by writ of error.

The first error assigned is based upon the refusal of the trial court to direct the jury to return a verdict of not guilty. In passing upon this point it is sufficient to say that section 1088, Rev. St. 1892, providing for the direction of a verdict by the trial judge, applies only to civil cases. Boykin v. State, 40 Fla. 484, 24 So. 141. While the trial judge would have the right, after all the evidence in a criminal case had been submitted, if he was clearly satisfied that all of said evidence would not warrant or support a verdict of guilty, to instruct the jury to acquit, this is a matter resting entirely within the discretion of the trial judge, and no error can be predicated upon his failure or refusal so to do. However, in the case at bar there was evidence tending to show the guilt of defendant, hence it was eminently proper for the jury to pass upon it, and say by their verdict whether they found the defendant guilty or not guilty.

The other errors assigned are to the effect that the verdict was contrary to the evidence and to the weight of the evidence contrary to law, and contrary to the instructions of the court; and all of said errors may be considered together. A careful examination of all the evidence discloses the following state of facts: A checkbook containing 50 checks payable to bearer, and of the value of $1 each, the same being the property of the Gainesville & Gulf Railway Company a corporation, was delivered by a clerk employed in the office of the auditor of said company to a conductor of said...