Milton v. State

• Decision Date: 29 September 1939
• Citation: 192 So. 219,140 Fla. 617
• Parties: MILTON v. STATE.
• Court: Florida Supreme Court

192 So. 219

140 Fla. 617

MILTON v. STATE.

Florida Supreme Court, Division B.

September 29, 1939

Rehearing Denied Dec. 1, 1939.

Error to Circuit Court, Leon County; J. B. Johnson, Judge.

Solomon Milton was convicted of first degree murder, and he brings error.

Affirmed.

On Petition for Rehearing.

COUNSEL C. N. Ashmore, of Tallahassee, for plaintiff in error.

George Couper Gibbs, Atty. Gen., and Tyrus A. Norwood and Thomas J Ellis, Asst. Attys. Gen., for the State.

OPINION

PER CURIAM.

Solomon Milton was indicted by the grand jury of Leon County Florida, being charged with the murder in the first degree of Margaret Haynes. He was arraigned, plead not guilty, was tried and, by the jury, found guilty as charged without recommendation to mercy. Motion for new trial was denied, and final judgment of conviction and sentence of death was entered upon the verdict. From that judgment writ of error was taken.

The principal question presented by counsel for plaintiff in error is whether the court should have given the jury an instruction on the subject of 'alibi'.

The bill of exceptions as certified here does not show the proceedings said to have occurred after the court finished giving his instructions to the jury, which instructions failed to include a charge relating to alibi. The following affidavit, however, was made by J. Lewis Hall, an attorney at law, who heard part of the trial:

'State of Florida

'Leon County.

'Personally appeared before me the undersigned authority, J. L. Hall, who upon oath deposes and says that he is an Attorney practicing law in Tallahassee, Florida, and that he was present during part of the trial of Soloman Milton in the Circuit Court of Leon County, Florida, on December 6th, 1937, and that after the defendant concluded testifying and announced to the Court that he rested his cause, the Circuit Judge began to charge the jury; that after the Judge concluded his charge the States Attorney prosecuting said Defendant arose and stated as follows to the Court:

"What about alibi Judge'. Whereupon the Court replied, 'It is not necessary in this case', and that the cause was submitted to the Jury.

'(signed) J. Lewis Hall

'Affiant.

'Sworn to and subscribed before me this 25th day of May 1939.

'Dorris Lewis (signed)

'(N. P. Seal)

Notary Public State of Florida at Large

'My Commission Expires July 9, 1940.'

The Attorney General's Office and counsel for plaintiff-in-error then entered into the following stipulation:

'It is herein and hereby agreed and stipulated by Counsel for the respective parties that the affidavit filed herein made by J. Lewis Hall be made a part of the transcript in the foregoing cause as if same were copied therein with reference to alleged request by Counsel for the charge of alibi;

'May 26, 1939 (signed) Thomas J. Ellis for Atty. Genl.

'(signed) C. N. Ashmore.'

This stipulation provided that the affidavit be made a part of the transcript. Even if the affidavit had been incorporated in the record proper in the first instance, we could not consider it, because it is matter in pais occurring at the trial and should be made a part of the bill of exceptions so that it might be properly authenticated by the trial judge. See Jarvis v. State, 115 Fla. 320, 156 So. 310; Mungin v. State, 109 Fla. 310, 147 So. 577; Branch v. State, 96 Fla. 307, 118 So. 13. For we cannot hold a trial judge to be in error on his ruling on a matter in pais occurring before him in the conduct of a trial, unless such matter is properly authenticated as having occurred before the trial judge, in accordance with statutory provisions.

In this connection, we said, in the case of Preston v. State, 116 Fla. 115, 156 So. 285, 286: 'The Supreme Court is without jurisdiction to grant a motion permitting any paper to be considered as a bill or exceptions, which has not been either presented to the circuit court for its consideration or allowed as such, in one of the forms of law provided for taking and preserving bills of exceptions in the lower courts, even though it be established or admitted that the proposed paper is in all respects the equivalent of a legal and proper bill of exceptions in the cause.'

We now come to the proposition as to whether the trial judge should have given an instruction on 'alibi' in the absence of any request to do so.

Section 4365(2698) C.G.L. 1927, provides:

'If either of the parties, or their attorneys, present to the judge instructions in writing on any point of law arising on the trial, it shall be the duty of the judge to declare in writing to the jury his ruling thereupon as presented, and pronounce the same to the jury as given or refused.'

This statute was enacted as Section 1 of Chapter 2096, Acts of 1877.

In discussing the interpretation to be given this statute, this Court, in the case of Blount v. State, 30 Fla. 287, 11 So. 547, 548, said:

'Counsel for plaintiff in error contend that it is the duty of the trial judge, whether requested to do so or not, to instruct the jury as to all the law applicable to the facts which have been proven, and a failure to so instruct is reversible error. It is clearly the duty of the court to instruct the jury on the law of the case,--that is, upon the law applicable to the facts proven in the case; and a refusal to give such instructions when asked would, of course, be error. But under our practice it has been settled by adjudications that, if a party wishes to avail himself of the omission of the court to charge the jury on any point of the case, he must ask the court to give the instruction desired; otherwise he will not be permitted to assign it as error. In Duggan v. State, 9 Fla. 516, the point was made that the record did not show that the judge filed the charge which he gave to the jury as provided by law. The statute provided that charges to juries in criminal cases should be reduced to writing, and filed in the case, and should be exclusively on points of law. Chapter 138, § 8, Laws 1848. It was held that the record did not show that the trial judge had instructed the jury at all, and hence there was no error in not filing instruction. This was a capital case, and the judgment was affirmed, although, as held by the court, no instructions at all were given. A year before the Duggan Case was decided, it was held in Cato v. State, 9 Fla. 163, that 'if the court assumes to charge the jury, it ought to charge on the whole law, but, if a party desires to avail himself of any failure or omission in this respect, he must call the particular point to the attention of the court, otherwise he will not be permitted to assign the omission for error. In the case of Long v. State, 11 Fla. 295 (decided in 1866 or 1867), it was held that the judge may omit to charge the jury, without error, when no instructions are specially requested in writing, but when he charges the jury he must confine himself to the law applicable to the case, and reduce his charge to writing, before it is delivered. These decisions were made while the statute of 1848 (chapter 138) was in force; but since the enactment of the statute of 1877, supra, [Chap. 2096] this court has announced the same rule.

' In Irvin v. State, 19 Fla. 872, the fourth assignment of error was that the court erred in not instructing the jury as to what constituted murder in both the first and second degrees. It is said in the opinion 'No exception was reserved to the charge, or any portion of it, and by the decisions of this court, often repeated, no exception thereto can be first taken here on writ of error. The attention of the court below should have been called to the error alleged at the time, and the instructions asked for should have been written out as provided by the laws, and presented to the judge, who would have declared in writing his ruling thereon as presented, and pronounced the same to the jury as given or refused.' See, also, Reed, Story and Sullivan v. State, 16 Fla. 564; Mutual Life Insurance Co. v. Snyder, 93 U.S. 393 . Counsel for plaintiff in error say this court has, in the case of Hicks v. State, 25 Fla. 535, 6 So. 441, said, by implication at least, that it is the duty of the judge to instruct the jury upon all the lower grades of homicide to which the testimony might be applicable. This court has said in the past, and now repeats it, that it is the duty of the trial court to instruct the jury on all the law applicable to the facts proven in a case; but the court has not said in the Hicks Case, or in any other case, that, if the court fails or omits to charge on the law applicable to some phase of the case, the defendant can avail himself of this omission without first requesting the court to charge on the point or points desired to be submitted to the jury. The reverse of this proposition is the settled practice in this state. In the Hicks Case, supra, an objection to the charge of the court was made on the ground that the court did not charge as to the relative degrees of manslaughter. It does not appear whether or not the court was requested to charge in reference to the degrees omitted. The decision was that there was no error in the charge of the court, because the evidence in the case did not in any sense apply to the degree or degrees of manslaughter omitted in the charge. There is no doubt about this being the settled doctrine in this state, and the court is not compelled to charge on the law not applicable to the facts of the case, whether requested or not. Of course, where the facts of the case call for or authorize a charge from the court on them, it would be error to refuse when requested. Counsel for plaintiff in error refer us to numerous decisions in support of the proposition that it is error for ...