Townsend v. State, A-40

• Citation: 97 So.2d 712
• Decision Date: 29 October 1957
• Docket Number: No. A-40,A-40
• Parties: Wade Hampton TOWNSEND, Petitioner, v. STATE of Florida, Respondent.
• Court: Court of Appeal of Florida (US)

Page 712

97 So.2d 712

Wade Hampton TOWNSEND, Petitioner, v. STATE of Florida, Respondent.

No. A-40.

District Court of Appeal of Florida, First District.

Oct. 29, 1957.

J. C. Adkins, Jr., and Ira J. Carter, Jr., Gainesville, for petitioner.

Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for respondent.

STURGIS, Chief Judge.

Wade Hampton Townsend was tried and convicted in the County Judge's Court of Alachua County on a charge of unlawful sale of intoxicating liquors. On appeal to the Circuit Court of Alachua County the judgment was affirmed. He then petitioned this court for writ of certiorari to review the proceedings below on the sole ground that the trial court inter alia charged the jury as follows, thus depriving him of due process of law:

'You have been sworn to uphold the law, and it is your duty to do so. The State Beverage Department employees are likewise sworn to uphold the law, and it is their duty to enforce the beverage laws wherever they are being violated. Their duty is to determine if the beverage laws are being violated and to file charges in all cases where the evidence warrants such.'

F.S. § 918.10(4), F.S.A., provides that no party may assign as error or grounds on 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. The record does not disclose that objection was made to the charge at any time during the course of the trial, and under such circumstances it is too late on petition for writ of certiorari or on appeal, assuming we had jurisdiction, to assign as error the giving or failure to give an instruction to the jury. Fabre v. State, 158 Fla. 853, 30 So.2d 367.

Petitioner cites F.S. § 924.32, F.S.A., which provides inter alia that the appellate court shall 'review all instructions to which an objection was made and which are alleged as a ground of appeal,' and that 'the court may also in its discretion, if it deems the interests of justice to require, review any other things said or done in the cause which appears in the appeal papers including instructions to the jury,' which statute is tracked by Fla.App. 6.16; and petitioner ingeniously insists that notwithstanding his failure to object, these provisions of law placed on the circuit court the duty to take cognizance of the charge under attack, and that it would have necessarily followed that the trial court be reversed on the premise that the charge is the equivalent of a denial of due process of law. It will be noted that the quoted provisions of F.S. § 924.32, F.S.A., and Fla.App. Rule 6.16 are in direct conflict with F.S. § 918.10(4), F.S.A., supra.

Petitioner's contention is not sound. The order of affirmance does not indicate that the circuit court ignored the statute or the rule, and in this court the presumption is conclusive that both were considered. Moreover, the charge under attack, when considered in the light of all the charges, did not constitute harmful error.

Giving effect to and reconciling the plain language of F.S. § 918.10(4), F.S.A., with the quoted portion of F.S. § 924.32, F.S.A., and he related portion of Fla.App. Rule 6.16 we hold that the circuit, courts when sitting as courts of appeal have unassailable discretion to review or not...