Winburn v. State

• Court: Florida Supreme Court
• Writing for the Court: MABRY, J.
• Citation: Winburn v. State, 28 Fla. 339, 9 So. 694 (Fla. 1891)
• Decision Date: 11 July 1891
• Parties: WINBURN v. STATE.

9 So. 694

28 Fla. 339

WINBURN v. STATE.

Florida Supreme Court

July 11, 1891

Error to circuit court, Suwannee county; JOHN F. WHITE, Judge.

Syllabus by the Court

SYLLABUS

Plaintiff in error was indicted and tried in the circuit court for an assault with intent to murder, and convicted of an assault and battery. Held, that the offense charged in the indictment determines the jurisdiction; and when the circuit court has acquired jurisdiction by reason of said charge, it has, under the constitution and statute, jurisdiction of all lesser offenses included in the indictment, and can pass sentence for the assault and battery, which is included in said indictment.

COUNSEL J. S. White, for plaintiff in error.

William B. Lamar, Atty Gen., for the State.

OPINION

MABRY J.

On the 7th day of August, A. D. 1890, during the summer term of the circuit court of the third judicial circuit of Florida for Suwannee county, the plaintiff in error was indicted for an assault with intent to murder one Bob Davis. The indictment charges that the plaintiff in error, 'on the 4th day of August, A. D. 1890, at and in the county of Suwannee, circuit and state aforesaid, with force and arms unlawfully and feloniously, with a deadly weapon, to-wit with a piece of iron, which he, the said A. J. Winburn, then and there had and held in his hand, of the length of eighteen inches, and of the width of one and one-quarter inches, and of the thickness of one inch, and with a premeditated design to effect the death of one Bob Davis, in and upon him, the said Bob Davis, then and there made an assault; and the said A. J. Winburn the said piece of iron aforesaid, so had and held as aforesaid, at him, the said Bob Davis, did then and there thrust and throw, with a premeditated design him, the said Bob Davis, then and there to kill and murder, contrary to the form of the statute in such cases made and provided.' Plaintiff in error was, at the winter term 1891, of said court, arraigned and tried upon said indictment, and convicted of an assault and battery. Upon the return of this verdict he made a motion to set aside the verdict and remand this cause to a justice of the peace of Suwannee county for trial, because the crime of assault and battery, of which he was convicted, is not within the jurisdiction of the circuit court, but within the jurisdiction of a justice of the peace, under the laws of Florida. This motion was overruled by the court, and defendant below then entered a motion in arrest of judgment for the following reasons: '(1) The circuit court has no jurisdiction herein to try, determine, and pass judgment for assault and battery; (2) because the jury herein, having returned a verdict of assault and battery failed to affix and assess the penalty and punishment herein prescribed, pursuant to statute under which conviction was had; (3) because the crime of assault and battery is within the jurisdiction of the justice of the peace, and the circuit court's jurisdiction is purely appellate in reference to the grade of misdemeanors to which assault and battery belong; (4) because the crime of assault and battery is not included within the charge of assault with intent to murder, of which defendant stood indicted, and on which he was tried herein.' This motion was overruled, and plaintiff in error adjudged to pay a fine of $100 and costs of the prosecution, from which judgment a writ of error is prosecuted to this court.

The errors assigned here are: '(1) The court erred in overruling defendant's motion to remand said cause to a justice of the peace for trial, upon the finding of the jury herein; (2) the court erred in overruling defendant's motion in arrest of judgment; (3) the court erred in rendering and passing judgment upon and against defendant herein.'

The testimony upon which the verdict was rendered is not before us, nor are there any other questions presented in the record except those arising upon the motions to remand to the justice of the peace and in arrest of judgment. A consideration of the motion in arrest of judgment will dispose of the case. The second ground of the motion in arrest of judgment--that the jury failed to affix and assess the punishment--has been expressly abandoned in the brief of counsel for plaintiff in error. It is not necessary, therefore, to consider this ground of the motion; but it will not be out of place to say that there is no law now in force here making it the duty of the jury in such cases to affix the penalty upon conviction. The court fixes the punishment within the limits prescribed by statute.

It is contended by counsel for plaintiff in error that the court had no jurisdiction to proceed further in the case when the jury returned a verdict of guilty against defendant for assault and battery. The original jurisdiction of circuit courts extends to all criminal cases not cognizable by inferior courts. Article 5, § 11, Const. 1885. Justices of the peace shall have jurisdiction in such criminal cases except felonies, as may be prescribed by law. Article 5, § 22, Id. By statute they are empowered to hear and determine cases of assault, or assault and battery, not charged to have been committed riotously, or upon any officer, or with intent to commit any other offense. McClel. Dig. p. 662, § 1. It is further provided, however, 'that, where any person is tried in any circuit court of this state for an offense of which such circuit court has original jurisdiction, and such person is found to be guilty of any lesser offense include in the offense for which indictment or information is filed against him, and for which he is being tried, and is not found guilty of the greater offense, he may be convicted in said court, and sentenced for such lesser offense, though it be an offense of such a nature as would come originally within the jurisdiction of an inferior court.' Chapter 3271, Laws Fla. The indictment preferred against plaintiff in error is for an assault with intent to murder,--an offense exclusively within the jurisdiction of the circuit court. The charge in the indictment...