Thomas v. State

• Decision Date: 08 March 1904
• Citation: 36 So. 161,47 Fla. 99
• Parties: THOMS v. STATE.
• Court: Florida Supreme Court

36 So. 161

47 Fla. 99

THOMS v. STATE.

Florida Supreme Court

March 8, 1904

In Banc. Error to Circuit Court, Columbia County; Lucius J Reeves, Judge.

Burton Thomas was convicted of murder in the second degree, and brings error. Affirmed.

Syllabus by the Court

SYLLABUS

1. Where an assignment of error is not argued, further than by a bare assertion that the ruling complained of is erroneous, it will be treated as abandoned, unless error in the ruling is so glaring or patent that no argument is needed to demonstrate it.

2. A general exception to the entire charge of the court will not avail if the charge contains a single correct proposition.

3. An instruction in a trial for murder that there is no evidence before the jury authorizing a conviction for a particular degree of unlawful homicide violates the spirit of the statute requiring the charge to be upon 'the law of the case only,' but such a charge, though technically erroneous, will not constitute reversible error if it relates to a degree higher than that of which the accused was convicted, or if it relates to a degree lower, but there was no testimony before the jury from which it could with any reason have formed a verdict of guilty of the excluded lesser degree.

4. If an accused be convicted of murder in the second degree at a trial had upon an indictment charging murder in the first degree, he cannot in the appellate court be heard to question the propriety of rulings giving or refusing to give instructions confined entirely to murder in the first degree and which had no relevancy to, or bearing upon, murder in the second degree.

5. The court, in the absence of one charged with a felony, whose case had been set, but not actually called, for trial one the day that a regular venire for jurors for the week, as well as a special venire for jurors for that case, is returnable, may have the sheriff make due return upon the venires and asscertain if the veniremen are present by having them called, and may likewise excuse jurors from the regular panel and supply deficiencies therein; such proceedings not being 'steps in' or 'stages of' the trial, within the meaning of the rule requiring defendant's personal presence.

6. In order to secure review by an appellate court of alleged objectionable remarks of counsel to the jury, objections to such remarks must have been made to the trial court, its reling obtained thereon, and an exception taken to the ruling; and it is too late to obtain the ruling necessary to review such matter where the objection is first brought to the attention of the trial court in the motion for a new trial.

7. Requested instructions are properly refused where they are in substance, embraced in the charges given.

8. Testimony offered by an accused that he refused to flee, made no effort to escape, or voluntarily surrendered to an officer, where such acts constitute no part of the res gestae of the offense, and where the state has introduced no testimony that he fled or attempted to escape or resisted arrest, is not admissible.

9. An instruction requested to the effect that if the accused made no attempt to escape or conceal himself, but readily and willingly surrendered to the officers, these were circumstances in his favor, which should be considered by the jury in arriving at a verdict, is properly refused.

10. Voluntary intoxication, not resulting in a fixed or settled frenzy or insanity, either permanent or intermittent, does not excuse or mitigate any degree of unlawful homicide below murder in the first degree.

11. It is proper to refuse a charge that 'evidence of bad character of the deceased, of bad disposition and overbearing manner, may be considered by the jury, in connection with the other evidence, if the defendant knew of it, as putting him upon his guard, and impelling him to a commission of the act alleged, in defense of his personal life, under apprehension aroused by such character,' requested by defendant upon a trial for unlawful homicide.

12. There is no error in refusing to permit the repetition of a question that has previously been put to, and fully and particularly answered by, the same witness.

13. The trial court may, in its discretion, permit testimony that should have been given in chief to be introduced in rebuttal and permit a defendant's witnesses to be recalled by the state for further cross-examination, in order to lay the foundation for impeaching them by testimony as to their previous contradictory statements, and such discretion will not be interfered with by an appellate court where no abuse is shown.

COUNSEL

T. B. Oliver, for plaintiff in error.

J. B. Whitfield, Atty. Gen., for the State.

OPINION

CARTER J.

At the spring term, 1903, of the circuit court for Columbia county, the plaintiff in error was tried upon an indictment, found at that term, charging him with the crime of murder in the first degree. He was convicted of the crime of murder in the second degree, and, from the sentence imposed, sued out this writ of error.

The first and second assignments of error are based upon a ruling denying defendant's motion to quash the indictment. The assignments are not argued by plaintiff in error; he saying merely, 'These are submitted on the face of the record and the assignments.' They must therefore be treated as abandoned, as there is no error in the rulings complained of so glaring or patent that argument is not needed to demonstrate it. Williams v. State, 46 Fla. ----, 34 So. 279, and other cases therein cited; Hoodless v. Jernigan, 46 Fla. ----, 35 So. 656.

The third, fourth, and fifth assignments of error question the propriety of the ruling denying defendant's motion for a new trial. This motion contains 36 grounds, the first 6 of which contend that the evidence is not sufficient to support the verdict. The court has carefully considered the evidence, and is of opinion that it supports the verdict.

The seventh ground of the motion is a general objection to the entire charge of the court. Where a general exception to the entire charge is taken, it will not avail, if the charge contains a single correct proposition. Carter v. State, 20 Fla. 754. Many of the propositions asserted in this charge are correct, and their correctness is not questioned by plaintiff in error.

The eighth and tenth grounds of the motion claim error in certain instructions given by the court which asserted that there was no evidence before the jury authorizing a conviction for murder in the third degree. In Wood v. State, 31 Fla. 221, 12 So. 539, it was held that charges of this nature were violative of the spirit of our statute requiring the charge to be upon 'the law of the case only,' but that such a charge, though erroneous, would not constitute reversible error, because no injury could accrue to the defendant, in two classes of cases, viz., first, where the charge relates to a degree higher than that of which defendant was actually convicted; and, second, where the charge relates to a degree lower than that of which defendant was convicted, but there was no testimony before the jury from which they could with any reason have formed a verdict of guilty of the excluded lesser offense or degree of crime. There was no testimony whatever in the present case tending to prove that the homicide was perpetrated by the defendant while engaged in the commission of any felony, and consequently nothing from which the jury could with any reason have formed a verdict of guilty of murder in the third degree. While the court committed a technical error in giving these charges, such error was harmless, and constitutes no ground for reversal. See, also, Carr v. State, 45 Fla. ----, 34 So. 892.

The ninth and thirty-sixth grounds of the motion question the propriety of instructions applicable only and confined entirely to murder in the first degree. The verdict here rendered is for murder in the second degree. The instructions complained of had no relevancy to, nor bearing upon, and could not have contributed to the conviction of, murder in that degree, and consequently it is now immaterial to defendant whether they were or were not correct. McCoy v. State, 40 Fla. 494, 24 So. 485; Richard v. State, 42 Fla. 528, 29 So. 413; Mathis v. State, 45 Fla. ----, 34 So. 287.

The eleventh and twelfth grounds of the motion are based upon alleged irregularities in calling and excusing jurors in defendant's absence. It appears that the case was set for trial on Monday, May 4, 1903, upon which day the regular venire for jurors for that week, and a special venire ordered for this case, were made returnable; that the regular venire 'was returned upon, announced, and called, and several members of said venire were actually excused in defendant's absence and without his consent,' and that 'the calling of the names drawn on the special venire drawn in and for this case began after return upon said venire and announcement thereof, in the absence of defendant from the courtroom, and some of the names on said special venire were actually called in the defendant's absence, and the calling of the same was progressing when the defendant was brought into the courtroom.' There is nothing in these proceedings of which defendant has a right to complain, nor was his personal presence required, under the circumstances. It is not claimed that any member of the regular panel was improperly excused. The defendant's case had not been called for trial at the time these proceedings were had, and it was eminently proper for the court, without requiring defendant's presence, not only to ascertain that the sheriff had made due return upon the regular and special venires, but to have the persons so summoned called, in order to ascertain if the...