West v. State

• Decision Date: 11 March 1908
• Citation: 55 Fla. 200,46 So. 93
• Parties: WEST v. STATE.
• Court: Florida Supreme Court

46 So. 93

55 Fla. 200

WEST v. STATE.

Florida Supreme Court, Division A.

March 11, 1908

Error to Circuit Court, Sumter County; William S. Bullock, Judge.

Charles H. West was convicted of manslaughter, and he brings error. Reversed, and new trial awarded.

See 43 So. 445.

Hocker J., dissenting.

Syllabus by the Court

SYLLABUS

Where a trial is had upon an indictment charging murder in the first degree, and the verdict is for manslaughter, it is in effect an acquittal of the crime of murder in all its degrees; and on a new trial, obtained at the instance of the defendant, he cannot again be tried for or convicted of any grade of crime higher than manslaughter. In such cases the court should, at the outset of the new trial, instruct the jury that they must confine their inquiries to the offense of manslaughter, and to the lower grades of crime included in the crime of manslaughter.

Where on an indictment for murder in the first degree, the defendant is convicted of manslaughter and secures a new trial, and on a new trial the court does not instruct the jury to confine their inquiries to the crime of manslaughter and the offenses included therein, it is error for the court in overruling an objection to argument by the state attorney as to whether the killing was done with a premeditated design to effect death of a person, to state that whether the evidence showed premeditation was a question for the jury to determine, even though such ruling is coupled with the statement that the jury could not find the defendant guilty of murder in the first degree. Premeditation in an element of murder in the first degree, but not of manslaughter, and whether there was premeditation should not be submitted to the jury in a trial for manslaughter.

Remarks by the trial judge, made in the hearing of the jury in making rulings during the trial, will have the same effect as formal instructions.

In a prosecution for manslaughter, it is error for the court to state in its rulings in the presence of the jury that whether the testimony 'should show premeditation or not is a question for the jury to determine,' and 'that if the evidence is sufficient to satisfy the jury that a murder had been committed, and even though that evidence should justify a verdict of murder in the first degree, or in any of the degrees,' the conviction could not be for a higher offense than manslaughter. No matter what the evidence may be in such a case, questions of premeditation or of murder are not issues for the jury to determine.

While under an indictment for homicide containing necessary allegations, there may be a conviction of any degree of unlawful homicide included in the charge, or of aggravated assault, if an assault with a deadly weapon is alleged in the indictment, yet, where the evidence shows without contradiction that the assault and the act following it caused the death of the person assaulted, it is not error to refuse requested instructions (1) That the indictment embraces and charges aggravated assault, and (2) that the jury may convict the defendant of aggravated assault, if they find from the evidence that defendant is guilty of such offense and no other.

Requested instructions that are not confined to the principles of law that are applicable to the facts and circumstances in evidence are properly refused.

In criminal prosecutions, exhibits should not be introduced in evidence, where they are not shown to have some bearing upon the issues being tried.

COUNSEL

Glen & Himes and J. T. McCollum, for plaintiff in error.

W. H. Ellis, Atty. Gen., for the State.

OPINION

WHITFIELD J.

On October 16, 1906, Charles H. West was by indictment in the circuit court for Sumter county charged with murder in the first degree of Albert E. Rucker. A conviction for manslaughter under this indictment was reversed, and a new trial granted. West v. State, 53 Fla. 77, 43 So. 445.

On October 25, 1907, the defendant was again convicted of manslaughter, and brought writ of error.

The record proper shows that a jury of six persons were chosen and duly sworn, and then recites that: 'The state attorney read to the jury the indictment upon which the defendant Chas. H. West was formerly tried, charging him with murder, and at said former trial the defendant was acquitted of murder and was found guilty of manslaughter. Said case was appealed to the Supreme Court of the state of Florida, and afterwards was remanded back to this court for new trial, and the defendant is now on trial for manslaughter.'

The bill of exceptions states as follows:

After the jury were sworn 'counsel for defendant respectfully asked the court at this time to instruct the jury that at the former trial of this case the defendant was acquitted of murder in all degrees, and that in the trial of this case the jury are not to inquire into whether or not the defendant was guilty of murder; that they will confine their inquiries as to whether he is guilty of manslaughter or not.

'The Court: The court will charge the jury fully upon these matters when it undertakes to charge the jury the law of the case, and not in the beginning. The announcement having been made that the defendant is not on trial for murder in any of the degrees, the court will charge the jury and at length when the time comes to charge the jury.

'And to the refusal of the court to give the said instruction to the jury the defendant then and there excepted.

'Thereupon counsel for defendant respectfully asked the court to instruct the jury that upon the trial of this case they shall not inquire into whether or not the defendant is guilty of murder in any degree, and that their inquiries and investigations shall not go into whether or not a murder in any degree is or is not proven by the testimony.

'The motion of defendant is denied, and defendant duly excepted; the jury having already been advised that the defendant is not on trial for murder.'

The bill of exceptions further states that:

'In the course of the argument to the jury the state attorney proceeded to define murder in the first degree. Thereupon counsel for defendant objected to the state attorney arguing to the jury what constituted murder in the first degree as being improper and immaterial and irrelevant to this trial, and asked the court to instruct him to desist from so doing. Thereupon the state attorney announced to the court in the presence of the jury that he conceived it to be the law of this state that, if the facts in this case would support a verdict of murder in the first degree, for such reason the jury could convict of manslaughter.

'Counsel for defendant thereupon contended that such was not the law, and the jury in this case are not charged with the duty of inquiring as to whether the testimony in this case at any time or now shows murder in any degree.

'The court thereupon overruled the objection of the defendant and stated in the presence of the jury as follows: 'The court holds that if the evidence is sufficient to satisfy the jury that a murder had been committed, and even though that evidence should justify a verdict of murder in the first degree, or in any of the degrees, that the defendant cannot be convicted of any higher offense than manslaughter; but because he could not be convicted of any higher offense than manslaughter, that does not exclude from the consideration of the jury of evidence tending to show that a higher offense was committed, nor can the court exclude any testimony proving or tending to prove that a higher offense was committed, but will instruct the jury, when the time comes, they cannot convict the defendant of any higher offense, if of any, than manslaughter. The motion of defendant to require the state attorney to desist his argument is overruled, and exception is duly entered to such ruling by defendant.' Thereupon the state attorney said to the jury in his argument: 'Now, let us consider the facts and circumstances of this case, to see whether or not this killing was done from a premeditated design to kill the deceased, or whether it was unlawful, or whether it was justifiable.'

'Counsel for defendant thereupon objected to the state attorney arguing to the jury the question whether or not the alleged killing was done with a premeditated design, and asked the court to instruct the state attorney to desist from arguing to the jury in this case whether or not the testimony shows that the killing was done from a premeditated design.

'The court thereupon overruled the said objection, stating in the presence of the jury as follows: 'The court holds that the evidence as produced by the witnesses must be considered by the jury. Whether it should show premeditation or not is a question for the jury to determine; but they cannot find the defendant guilty of murder in the first degree. Nor can the court eliminate from the consideration of the jury any evidence, although that evidence should tend to show premeditation, but can simply instruct the jury that in no event can they find the defendant guilty of any higher offense than manslaughter, and asks that the line of argument be conducted within limits.' To which ruling of the court defendant then and there excepted.

'The state attorney thereupon stated in presence of the jury: 'Does the court hold that my argument was beyond these limits?' To which the court replied: 'You can argue all the testimony before the jury. The court holds that all the testimony may be argued before the jury.'

'W. F. Himes, Esq.: As tending to prove premeditation?

'The Court: If the evidence has that tendency, the court has no power to strike it out for that.

'To which ruling counsel for defendant then and there excepted.'

In the...