Mclendon v. State
| Decision Date | 29 July 1925 |
| Citation | 105 So. 406,90 Fla. 272 |
| Parties | McLENCON v. STATE. |
| Court | Florida Supreme Court |
En Banc.
Error to Circuit Court, Palm Beach County; C. E. Chillingworth Judge.
Richard McLendon, alias Chester McLendon, was convicted of murder in the first degree, with no recommendation to mercy, and he brings error.
Reversed and a new trial awarded.
Syllabus by the Court
Motion for new trial must be filed within 4 days after verdict, and during same term. In criminal cases, defendant's motion for a new trial must be filed within four days after the verdict shall have been rendered, and during the same term. No authority now exists for extending the time within which such motion may be filed.
If accused, even by leave of court, attempts to file motion for new trial after expiration of statutory time, cause stands as if no motion for new trial had been made. Where the defendant in a criminal case, even by leave of court, attempts to file a motion for a new trial after the expiration of the time fixed by the statute, the cause stands as if no motion for a new trial had been made.
Effect of powder burns from pistol shot on paper and cloth targets held not admissible to show distance at which they would be left on person's flesh. In a prosecution for an unlawful homicide, the deceased having been killed by a pistol shot the bullet entering the bare scalp of the deceased, where it becomes material to determine the distance at which the pistol was held from the head of the deceased when the fatal shot was fired, paper and cloth targets, which have been fired upon at various distances with the same pistol, and similar ammunition with which deceased was killed, are not admissible for the purpose of demonstrating the distance at which powder burns and marks would be left from such shots upon the flesh of deceased, in the absence of qualified and credible testimony that the effect of such shots upon human flesh and upon paper or cloth targets would be essentially similar in respect to resulting powder marks and burns. Where such requisite supporting proof is lacking, courts cannot assume either the essential similarity of the three substances or the relative effect of the pistol shots thereon.
Blackwell, Donnell & McCracken and D. L. Southard, all of West Palm Beach, for plaintiff in error.
Rivers Buford, Atty. Gen., and Marvin C. McIntosh, Asst. Atty. Gen., for the State.
The plaintiff in error, hereinafter referred to as the defendant, was convicted of murder in the first degree, with no recommendation to mercy, and to the judgment of conviction he takes writ of error.
The deceased was a police officer of the city of West Palm Beach. The defendant resisted an effort of the police officer to place him under arrest, and during the encounter which ensued, the police officer was fatally wounded with a bullet from his own pistol. The state claims that the bullet was fired by the defendant from a premeditated design to effect the death of the officer, while the defendant claims that the pistol was discharged by him accidentally during the struggle.
The first assignment of error questions the correctness of the order overruling defendant's motion to set aside the verdict and grant a new trial. The grounds of the motion are as follows:
'(4) The verdict is contrary to the instructions of the court.'
Under the first ground of the motion, the defendant questions the sufficiency of the evidence to support the verdict. The verdict was rendered on March 5, 1924. On March 8, 1924, the defendant moved the court for an extension of time of 15 days in which to file his motion for a new trial, which motion was granted. The motion was filed on March 18, 1924, more than 4 days after the rendition of the verdict. The motion for extension of time was apparently made under the supposed authority of section 2811, Revised General Statutes, 1920, providing, in effect, that in civil cases the trial judge, upon cause shown, may, by an order made within 4 days after the rendition of the verdict and during the same term, extend the time for the making and presentation of such motion, not to exceed 15 days from the rendition of the verdict. That this section is distinctly confined to civil cases is plainly shown by its caption, as well as by the concluding sentence of the section, which is as follows:
'The provisions of this section shall not apply to criminal cases.'
This sentence is section 3 of the original act, chapter 5403, Acts of 1905.
In criminal cases, the motion for a new trial must be filed within four days after the verdict shall have been rendered, and during the same term. Section 2810, Revised General Statutes, 1920. The provisions of this section are mandatory. Baxley v. State, 72 Fla. 228, 72 So. 677. There is no authority for extending the time for filing a motion for a new trial in criminal cases. We have repeatedly held that in order for an appellate court, upon writ of error, to review the sufficiency of the evidence to sustain the verdict, a motion for new trial, upon the ground of the insufficiency of the evidence, must be duly presented to and acted upon by the trial court. Baxley v. State, supra. This motion was made more than four days after the rendition of the verdict. The case therefore stands as though no motion for a new trial had been made at all. It is obviously not error for the trial judge to deny a motion which in legal contemplation has never been made.
The third assignment of error questions the correctness of the ruling of the trial court in admitting evidence offered by the state of certain experiments purporting to show the distance at which powder marks and burns would be left upon an object when fired at by the pistol which inflicted the mortal wound upon the deceased, using ammunition identical with that used in the fatal encounter. In its rebuttal testimony, the state offered the testimony of one R. C. McGriff, who is apparently a man of wide experience in the use of firearms and the result of their operation and discharge. This witness testified that on the day of his testimony, using the pistol with which the deceased was killed, and using also the same kind of ammunition that was in the magazine of the pistol when it fired the fatal shot, the same powder load, the same jacket and otherwise the same in every particular, he fired several shots into certain targets of paper and cloth, holding the muzzle of the pistol at varying distances from the targets. The targets themselves, four or more in number, were then placed in evidence. The first and second were paper targets, fired upon, respectively, at a distance of 6 inches and 12 inches. The third and fourth were clean linen handkerchiefs, fired upon, respectively, at a distance of six inches and three inches. The bill of exceptions indicates that two other targets, either of paper or of cloth fired upon at distances of one inch and one foot, were also admitted in evidence. Using these targets, the witness pointed out to the jury the marks left upon them by such gunfire and stated which marks were bullet holes, which were powder marks, and which were powder burns. The effect of the gunfire upon the targets, however, was evidenced by the targets themselves. The defendant vigorously objected to this testimony, as well as to the introduction in evidence of the targets themselves, upon the grounds 'that the material of the targets was not such that would enlighten the jury on any question involved in this case; that it was not shown that conditions were similar; that the material used is different from any material before the jury with reference to this homicide.' These objections were overruled, and this ruling is assigned as error. The undisputed testimony shows that the fatal bullet wound entered the head of the deceased about an inch above and to the rear of the right ear. No powder marks or burns were found upon the flesh of the deceased. The state's evidence tended to show that, when the defendant fired the fatal shot, he was standing some distance away from the deceased, and hence that the shooting was not accidentally done in the struggle, but with premeditation and after the defendant had disengaged himself from the deceased. The defendant testified, however, that:
It appears that the latter shot was the fatal one. Under these circumstances, it became very material to determine the distance at which defendant stood from the deceased when he fired the fatal shot. If the homicide occurred as the defendant said it did, there might have been burns and powder marks left upon the deceased. If it occurred as the state contends there would probably have been no powder marks. These matters would have a most material effect in determining the degree of homicide.
The experimental evidence tended to corroborate the state's witnesses in respect to the distance at which the pistol was held from the head of the deceased when the fatal shot was fired, at the same time refuting the defendant's assertion that the fatal shot was fired accidentally in the close proximity of the head of the deceased. In Lawrence v. State, 45 Fla. 42, 34 So 87, this court cited with approval the rule as to the admissibility of experimental evidence of this nature as stated in 12 Am. & Eng. Ency. of Law (2d Ed.) p....
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