Mcduffee v. State

• Decision Date: 14 May 1908
• Parties: McDUFFEE v. STATE.
• Court: Florida Supreme Court

46 So. 721

55 Fla. 125

McDUFFEE v. STATE.

Florida Supreme Court, Division A.

May 14, 1908

Error to Criminal Court of Record, Escambia County; E. D. Beggs Judge.

Charles McDuffee was convicted of robbery, being at the time armed with a deadly weapon, and he brings error. Affirmed.

Syllabus by the Court

SYLLABUS

On an information for robbery, alleging a striking and wounding the statute being in the alternative, proof of either will suffice.

A limitation of 30 minutes to either side in the argument to the jury on a trial for robbery held no ground for reversal where the testimony was not complicated and the witnesses few, and no affirmative showing is made that such limitation of the argument was detrimental to the defendant.

When the defendant without consulting the court or state's solicitor excuses a witness, the court will not be reversed for refusing to continue a case to secure his attendance.

Error if any, in a charge that the burden of proving an alibi is upon the defendant, is cured by the further charge that, if upon the whole evidence there be a reasonable doubt as to the defendant's presence, there must be an acquittal, and, further, that the burden is upon the state to make out its case in every material allegation beyond a reasonable doubt.

The court should refuse to instruct that the defendant in a criminal case is presumed to be of good character. The defendant by refusing to make it an issue cannot reap the benefit of the presumption by a charge.

Where the court has charged fully as to the burden of proof and quantum of evidence, it may refuse to instruct that the presumption of innocence is evidence in favor of the accused introduced by the law in his behalf.

Specific instructions as to proof beyond a reasonable doubt of the identity of the assailant and the taking of money from the person were properly refused in a prosecution for robbery when covered by the general charge as to proof of every material allegation.

The court having charged that 'by 'reasonable doubt' is not meant a possibility of a doubt, or a speculative, imaginary, or forced doubt, but it must be a doubt naturally arising from the evidence, and as the words themselves import, it must be a reasonable doubt, one conformable to reason,' may refuse to add thereto that 'if after a consideration of all the evidence submitted in the case both by the state and the defendant, including the statement of the defendant himself, you cannot say you have an abiding conviction to a moral certainty of the guilt of the defendant, it will be your duty to acquit.'

The necessity of proof beyond a reasonable doubt in order to convict sufficiently embraces the idea that a belief in innocence is not essential to an acquittal.

COUNSEL

C. H. Laney and J. P. Stokes, for plaintiff in error.

OPINION

COCKRELL J.

Charles McDuffee was convicted in the criminal court of record for Escambia county of the crime of robbery, being at the time armed with a deadly weapon. To review the sentence of 12 years in the state's prison imposed upon such conviction, he prosecutes this writ of error.

The first error is assigned upon the overruling of his motion for new trial, and under this assignment it is argued that the evidence fails to show a wounding of the person assaulted, and the case of Commonwealth v. Gallagher, 6 Metc. (Mass.) 565, is cited in support of the contention. The cited case is authority to the contrary, in that the Massachusetts Supreme Judicial Court held, speaking through Chief Justice Shaw, of a similar indictment under a similar statute, that either a 'striking' or a 'wounding' would suffice to make out the crime, and there can be no question in the case before us of the sufficiency of the evidence as to the striking with the deadly weapon. We have recently held that, when a statute makes two alternatives ingredients of an offense, the pleader may charge them conjunctively and prove either. Lewis v. State, 55 Fla. ----, 45 So. 998.

The second assignment is that the defense argument was limited to 30 minutes.

At the conclusion of the evidence, which had occupied but a portion of the morning session of the court and in narrative form, covers 11 pages of typewriting. Four witnesses on either side being examined, the court announced that the state would be allowed 30 minutes and the defense also 30 minutes to sum up the evidence, and to the ruling the defense excepted. The state used much less than the allotted time, but the defense, after consuming 30 minutes, was prevented further argument by the court under the previous announcement.

Upon the record it would be difficult to surmise how error has been shown. For aught that appears, the two attorneys for the defense had made an exhaustive analysis of the evidence when notified that the 30 minutes had expired. The testimony was without complications. Upon the part to the state the party assaulted and robbed positively identified the defendant as the assaulting party, and another eyewitness recognized him following the assaulted party after dark in a lonely spot, while for the defense there was the defendant's denial upon the witness stand, and the testimony of three witnesses as to an alibi that signally failed to account for the defendant's presence at the crucial time.

There is no statutory regulation of argument of counsel in this state, and this is the first time that the point has been presented to this court. The consensus of other courts, however, where statutes do not control, recognize a reasonable discretion in the trial judge in such matters, and it is a tribute to the patient courtesy of our trial judges that complaint is now for the first time made.

It is easy to conceive of cases where a limitation of 30 minutes would be a gross abuse of discretion, depending on the character of the evidence, the number of witnesses, and other circumstances, and in such cases we should not hesitate to interfere, especially should the record disclose that the limitation actually prevented counsel from proper argument, but, after a careful reading of the cases cited to us in behalf of this assignment, we feel confident that no abuse of discretion is now made to appear.

The court's restriction of time applied only to the summing up of the evidence before the jury and not to the argument of the law to the court upon the special instructions requested, and the importance of those instructions does not enter into this discussion.

The counsel for the defense, without consultation with the court or the state solicitor, excused a witness until the afternoon session, and requested a continuance of the case to enable the witness to be present. The request was refused, and the ruling is assigned for error. The defense took the chance of the case being promptly called and tried. If the convenience of counsel and witness alone was to be consulted, the courts would soon be unable to proceed in an orderly, dignified way.

The fourth assignment of error is based upon this language used in the court's general charge to the jury: 'Where an alibi is set up, the burden of proof is on the defendant; but he is not bound to prove it beyond raising a reasonable doubt.' The expression 'burden of proof' may be unfortunate, and standing alone the charge may be subject to criticism as shifting the burden of proof in a defense not strictly affirmative, but, if this be error, to borrow an expression from Prof. Thayer, the complete charge contains the antidote. The quoted charge is but a portion of a sentence, ending with a comma, and which continues: 'And, if upon consideration of all the evidence in the case you should have a reasonable doubt that the defendant was present when the crime was committed, he should be acquitted.' The next sentence of the charge also acts as a corrective, viz.: 'The law presumes every man innocent until he is proven guilty beyond a reasonable doubt; and the burden is on the state to make out its case in every material allegation beyond a reasonable doubt.'

The charge here complained of does not go so far as those condemned by the Texas courts, in that nothing is said as to the necessity for overcoming the 'burden of proof' by a preponderance of the evidence; on the contrary, the jurors are told that an acquittal follows if upon a consideration of the whole evidence there is a reasonable doubt as to the defendant's presence at the commission of the crime. See Commonwealth v. Choate, 105 Mass. 451; Thayer's Treatise on Evidence, p. 363, note 1.

There was...