Michael v. State

• Decision Date: 11 May 1898
• Parties: MICHAEL v. STATE.
• Court: Florida Supreme Court

23 So. 944

40 Fla. 265

MICHAEL v. STATE.

Florida Supreme Court

May 11, 1898

Error to circuit court, Sumter county; William A. Hocker, Judge.

Will Michael was convicted of murder, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. In an indictment for murder, it is essentially necessary to set forth particularly the manner of the death, and the means by which it was effected, but, in stating the facts which constitute the offense, no technical terms are required; and an averment of the manner and means by which the deceased came to his death, in concise and ordinary language, and in such a way as to enable a person of common understanding to know what was intended, is sufficient.

2. Under section 2893, Rev. St., it is immaterial that an indictment for murder concludes against the form of the 'statutes,' where it should properly conclude against the form of the 'statute.'

3. Where counsel make improper and prejudicial remarks or arguments during the trial of a case, the opposite party should present his objections thereto, and secure a ruling from the presiding judge thereon, and, if the ruling is adverse, except to it, in order to secure a review of such ruling by this court. This court cannot consider an exception to a remark of counsel, but only an exception to some ruling of the trial court with reference thereto.

COUNSEL R. L. Anderson, for plaintiff in error.

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

OPINION

CARTER J.

At the fall term, 1897, of the circuit court of Sumter county plaintiff in error was convicted of murder in the first degree, with recommendation to mercy, and, from the sentence imposed upon him, sued out this writ of error. The indictment, which was found September 26, 1896, reads as follows: 'In the Name of the State of Florida. In the circuit court of the Fifth judicial circuit of the state of Florida, for Sumter county, at the fall term thereof, in the year of our Lord 1896, Sumter county, to wit: The grand jurors of the state of Florida, inquiring in and for the body of the county of Sumter, upon their oaths do present that Will Michael, late of the county of Sumter aforesaid, in the circuit and state aforesaid, laborer, on the 24th day of June, in the year of our Lord 1896, with force and arms, at and in the county of Sumter aforesaid, did unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of one Henry Rush make an assault on the said Henry Rush; and a certain gun which then and there was loaded with gunpowder and leaden bullets, and by him, the said Will Michael, had and held in his hand, he, the said Will Michael, did then and there unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said Henry Rush, shoot off and discharge at and upon the said Henry Rush, thereby and by thus unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said Henry Rush, striking him with the leaden bullets aforesaid, unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said Henry Rush, inflicting on and in the body of him, the said Henry Rush, one mortal wound, of which mortal wound the said Henry Rush then and there instantly died. And so the said Will Michael did, in manner and form aforesaid, unlawfully, feloniously, of his malice aforethought, and from a premeditated design to effect the death of the said Henry Rush, kill and murder the said Henry Rush, against the form of the statutes in such case made and provided, against the peace and dignity of the state of Florida. [Signed] Syd. L. Carter, State Attorney, Fifth Judicial Circuit of Florida.'

Plaintiff in error moved to quash this indictment upon grounds stated as follows: '(1) The indictment is so vague and indefinite in its description of the alleged homicide that the defendant cannot obtain a fair trial thereunder. (2) The indictment does not sufficiently charge an offense under the statute. (3) The indictment is defective and insufficient under the common law. (4) It does not sufficiently allege that the deceased was struck with the leaden bullets alleged, nor does it show who was struck by the same. (5) It does not show when or where the defendant had or held the alleged gun mentioned in the indictment. (6) It does not conclude in the manner required by law, in that it concludes against the form of the statutes, employing the plural instead of the singular. (7) The indictment is otherwise vague, imperfect, indefinite, and insufficient.' The order overruling this motion to quash constitutes the first assignment of error.

The plaintiff in error contends in this court that the loose employment of the pronoun in this indictment leaves the description or identification of the deceased and the accused indefinite and insufficient; that the use of the plural 'statutes,' instead of the singular, 'statute,' in the concluding portion, renders it defective in form; and he insists that the remaining...