State v. Brown, 1247

• Decision Date: 10 February 1960
• Docket Number: No. 1247,1247
• Citation: 118 So.2d 574
• Parties: STATE of Florida, Appellant, v. Ike BROWN, Appellee.
• Court: Florida District Court of Appeals

Page 574

118 So.2d 574

STATE of Florida, Appellant, v. Ike BROWN, Appellee.

No. 1247.

District Court of Appeal of Florida, Second District.

Feb. 10, 1960.

Rehearing Denied March 14, 1960.

Richard W. Ervin, Atty. Gen., George R. Georgieff, Asst. Atty. Gen., Gordon G. Oldham, Jr., State Atty., Leesburg, John W. McCormick, Asst. State Atty., Tavares, Fifth Judicial Circuit, for appellant.

M. C. Scofield, Inverness, and W. B. Hunter, Tavares, for appellee.

ALLEN, Chief Judge.

Ike Brown, the appellee here, was found guilty by the jury of murder in the second degree. A motion for a new trial was filed. The presiding judge entered an order granting a new trial to the defendant, Brown. This appeal followed the order granting a new trial.

The question of law involved in this case is whether or not a judge, trying a defendant charged under an indictment of first degree murder and convicted of murder in the second degree, should grant a new trial where the trial judge failed to charge on murder in the third degree even though there was no evidence in the record of murder in the third degree and where the defendant did not request a charge of third degree or raise any objections at the trial of a failure of the judge to charge on third degree murder. In addition thereto the defendant, in his motion for a new trial, asserted no ground based on the failure of the trial judge to charge on third degree murder.

This court holds that under the record in this case a new trial should not have been granted by the lower court.

Florida Statutes, § 918.10, F.S.A., Charge to jury; request for instructions, provides:

'(1) The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offense for which the accused is then on trial.

'(2) Every charge to a jury shall be orally delivered, and charges in capital cases shall also be in writing. Charges in other than capital cases shall be taken by the court reporter, transcribed by him, and filed in the cause.

'(3) At the close of the evidence, or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury.

'(4) No party may assign as error or grounds of appeal the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

'(5) When an objection is made to the giving or failure to give an instruction, no exception need be made to the court's ruling thereon in order to have such ruling reviewed, and the grounds of objection and ruling thereon shall be taken by the court reporter, transcribed by him, and filed in the cause.'

In the case of Everett v. State, Fla.1957, 97 So.2d 241, 244, the Florida Supreme Court, in a case where the defendant was indicted and convicted of murder, held that the defendant could not on appeal complain of instructions given or refused where no objections were made pursuant to F.S.A. § 918.10. The Court, in its opinion, saying:

'It is next contended that the charge of the court unduly emphasized the theory that the jury could find appellant guilty of murder in the first degree without reference to premeditation if the murder was committed while appellant was engaged in the perpetration of rape, robbery or burglary.

'It is true that when murder is committed in the perpetration of rape, robbery or burglary, premeditation is unimportant and does not have to be shown. To support his contention appellant relies on instructions 6, 11, 41 and 42 as revealed by the record but it is not shown that he objected on the theory here presented or on any theory prior to retirement of the jury. Section 918.10(4), Florida Statutes, F.S.A. It is clear from the record that the question here presented was not called to the attention of the trial court or ruled on by him at any time and being so it will not be considered on appeal. Daly v. State, 67 Fla. 1, 64 So. 358; Dewey v. State, 135 Fla. 443, 186 So. 224; Dukes v. State, 148 Fla. 109, 3 So.2d 754.

'The seventh question has to do with whether or not defendant was entitled to have the jury charged that they were at liberty to accept the opinion of non-expert witnesses in preference to that of expert witnesses if they elected to do so.

'We have examined the charges given and those requested but we do not find that any such charge as contended for was requested. It necessarily follows that not having been requested appellant cannot complain that the charge was not given. Brunke v. State, 160 Fla. 43, 33 So.2d 226; Foreman v. State, Fla., 47 So.2d 308. It does not further appear that complaint of failure to give such a charge was made in motion for new trial, nor did any assignment of error raise the point. Aside from this we have examined the charges given and we think they fully advised the jury that it was within their province to elect to believe the evidence of the expert or the non-expert witnesses.'

In Nelson v. State, Fla.1957, 97 So.2d 250, 252, another murder case, the Supreme Court said:

'In presenting another point, the appellant complains that the court erred in denying four requested charges but these charges appear only in his brief. We can find in the record no reference to charges he asked the court to give to the jury or, for that matter, any objections to charges given. That there is no obligation to consider this point is obvious from an examination of Sec. 918.10(4), Florida Statutes 1955, and F.S.A., declaring that 'the giving or the failure to give an instruction' may not be assigned as error unless objection is made before the jury retires to consider a verdict. Dalton v. State, Fla., 42 So.2d 174.'

The Supreme Court of Florida, prior to the adoption of the Criminal Procedure Act, Chapter 19544, Acts of 1939, and in particular Section 919.14, F.S.A., which section included the following:

'The court shall in all such cases charge the jury as to the degrees of the offense.'

consistently held there was no error in the failure of a trial judge to charge in a murder case on a lesser degree of homicide where there was no evidence in the record tending to make out a lesser degree of murder.

In Carr v. State, 45 Fla. 11, 34 So. 892, the Court held that it was not error for the trial judge, in instructing the jury, to have stated that there was no evidence authorizing a conviction for a murder in the third degree, inasmuch as there was not a scintilla of evidence tending to make such a crime before the jury. To the same effect was the case of Cook v. State, 46 Fla. 20, 35 So. 665; McDonald v. State, 55 Fla. 134, 46 So. 176; Moore v. State, 59 Fla. 23, 52 So. 971, and Fails v. State, 60 Fla. 8, 53 So. 612.

In Fine v. State, 70 Fla. 412, 70 So. 379, 382, the Court, in its opinion, said:

'The court did not instruct the jury as to the definition of murder in the third degree, which, under the facts in this case, was not necessary. The definitions of murder in the first and second degree and manslaughter were given, and the forms of such verdicts were embodied in the instructions.'

In Southworth v. State, 98 Fla. 1184, 125 So. 345, 348, the Supreme Court, in its opinion, stated:

'Defendant assigns as error the refusal of the court to charge the jury on the several degrees of homicide, other than murder in the first degree. The statute makes the unlawful killing of a human being, when committed in the perpetration of robbery, murder in the first degree. Comp.Gen.Laws, § 7137; Rev.Gen.St. § 5035. The verdict is amply supported by the evidence. A verdict for any degree of homicide other than murder in the first degree would not have been proper, under the evidence. It is not the duty of the court to charge the jury upon a degree of homicide to which the evidence could not apply. Fails v. State, 60 Fla. 8, 53 So. 612, Ann.Case.1912B, 1146; Gillyard v. State, 65 Fla. 322, 61 So. 641.'

In Henderson v. State, 135 Fla. 548, 185 So. 625, 626, 120 A.L.R. 742, the Court said:

'It is contended that reversible error was committed by the trial court in failing or omitting to charge or instruct the jury upon: (a) manslaughter; (b) murder in the third degree; (c) murder in the second degree. We have carefully examined the evidence and think or believe there is ample evidence to sustain the verdict, and while the charge of the court was limited to murder in the first degree, we think that the evidence fully justifies the charge and that no error was committed in failing or neglecting to charge the lesser degrees of murder.'

The case of Henderson v. State, supra, was decided December 16, 1938, and rehearing denied January 24, 1939, so apparently this was the last case decided by the Supreme Court prior to the adoption of Section 919.14, F.S.A., as it now exists, which is as follows:

'If the indictment or information charges an offense which is divided into degrees, without specifying the degree, the jurors may find the defendant guilty of any degree of the offense charged; if the indictment or information charges a particular degree the jurors may find the defendant guilty of the degree charged or of any lesser degree. The court shall in all such cases charge the jury as to the degrees of the offense.' (Emphasis supplied.)

In the case of Killen v. State, Fla.1957, 92 So.2d 825, 828, the defendant was prosecuted for murder in the first degree committed in an attempt to perpetrate a robbery. The jury returned a verdict of guilty of manslaughter and upon a judgment of guilty being rendered, the defendant appealed to the Supreme Court. The...