LEROY PERRY, PLAINTIFF IN ERROR,
v.
STATE OF FLORIDA, DEFENDANT IN ERROR
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Leroy Perry was convicted of murder in the first degree for the July 1927 killing of Alfonso Merritt, though the indictment was returned in July 1930. Perry appealed, arguing that the statute of limitations barred prosecution for lesser homicide charges and that certain jury instructions should have been given. The Florida Supreme Court affirmed the conviction.
The trial court properly refused to charge the jury on lesser homicide offenses because all degrees of unlawful homicide other than murder in the first degree were barred by the statute of limitations given the July 1927 date of the offense. The requested jury charges were also properly refused because they were improper under the facts and the matters they sought to address were adequately covered by the general charge.
“This statement contains no evidence whatever as to the date of the alleged homicide and, therefore, constitutes no conflict' with all the other evidence, including that of the defendant which was that the homicide was committed in July of 1927 or certainly prior to August 10th, 1927.”
The court rejected Perry's argument that Joe Allen's vague testimony about the date created a factual conflict requiring jury instruction on lesser charges.
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Join FLexlaw to unlock all legal intelligenceAlfonso Merritt died from wounds inflicted by Leroy Perry on July 30, 1927. Perry fled to Philadelphia, arriving on August 10, 1927, and remained ther…
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In this case indictment was returned on July 2nd, 1930, charging the offense of murder in the first degree to have been committed by defendant on July 31st, 1927, in the unlawful killing of Alfonso Merritt.
The uncontradicted evidence is that the wounds of which Merritt died were inflicted by the accused on July 30th, 1927.
The defendant himself did not fix the date, but he did testify that he left the scene of the homicide soon after it was committed and went to Philadelphia, Pa., and that he arrived there on the 10th of August, 1927, and remained there until he was returned to Florida under the charge prosecuted.
The contention is made by the plaintiff in error that because one witness, Joe Allen, testified as follows, when being asked about the date of the occurrence, in reply to the question, “What year was this?”, he replied, “I think it was between 1928 and 1929, something like that. I do not know what year it was. I do not remember now”. This statement contains no evidence whatever as to the date of the alleged homicide and, therefore, constitutes no conflict' with all the other evidence, including that of the defendant which was that the homicide was committed in July of 1927 or certainly prior to August 10th, 1927.
So it is that the trial court committed no error in ref us*582ing to charge the jury the law as to unlawful homicides of a less degree than murder in the first degree, as all other degrees of unlawful homicide were barred by the statute of limitations.
It is further contended by plaintiff in error here that the refusal to give certain charges requested by the defendant in the court below constituted reversible error. We have carefully considered the charges, the refusal to give which is complained of, and find that neither of the requested charges were proper to be given under the facts in this ease; that the matters sought to be brought to the attention of the jury by these charges were properly covered by the general charge given by the trial judge. Therefore, it appears that no reversible error occurred by reason of the refusal to give the requested charges.
The judgment should be affirmed and it is so ordered.
Affirmed.
Ellis and Brown, J.J., concur.
Whitfield, P.J., and Terrell and Davis, J.J., concur in the opinion and judgment.
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Melvee Tucker v. State, 459 So. 2d 306 (Fla. 1984)…by seeking indictments for first-degree murder and then forcing the accused to waive the statute of limitations defense. For the foregoing reasons I believe we should overrule Blackmon v. State, 88 Fla. 188, 101 So. 319 (1924), and Perry v. State, 103 Fla. 580, 137 So. 798 (1931), and their progeny, including Spaziano v. State, 393 So. 2d 1119 (Fla.), cert. denied, 454 U.S. 1037, 102 S.Ct. 581, 70 L.Ed.2d 484 (1981). Due process and equal protection are evolving concepts and the time has come to correct t…
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Lindberg v. State, 134 Fla. 786 (Fla. 1938)…have been fully covered by other instructions or charges given in the case. Dixon v. State, 16 Fla. 636; Pinkney v. State, 83 Fla. 550, 92 Sou. 160; Roberts v. State, 90 Fla. 779, 107 Sou. 204; Bass v. State, 58 Fla. 1, 50 Sou. 531; Perry v. State, 103 Fla. 580, 137 Sou. 789. One of the charges requested was: “You are charged that under the law the word ‘imminent’ as used in the Court’s instruction upon self-defense as applied to the danger of committing a felony or doing great personal injury, means nea…
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Anderson Mitchell v. State, 157 Fla. 121 (Fla. 1946)…eral Constitution. Counsel for appellant bottoms his contention as to the unconstitutionality of the last sentence of Section 932.05 supra on our holdings in Nelson v. State, 17 Fla. 195; Blackmon v. State, 88 Fla. 188, 101 So. 319; Perry v. State, 103 Fla. 580, 137 So. 798; Peeler v. State, 107 Fla. 615, 146 So. 188. An analysis and study of the cited cases disclose that the challenged portion of the statute here involved was not before the Court and in fact was not in existence when the cited cases were…1 / 2
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