BERRY EDWARDS, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Berry Edwards was convicted of assault with intent to commit murder and challenged the verdict as defective for failing to specify the degree of murder he intended. The Florida Supreme Court affirmed, holding that the law does not require a verdict for assault with intent to commit murder to specify the degree of murder, and that the verdict should be read in connection with the indictment to determine the jury's intent.
A verdict for assault with intent to commit murder is not required by law to specify the degree of murder intended. The verdict should be read in connection with the indictment, and when so considered, the jury's intention to find the defendant guilty of the charged offense is apparent. The verdict is sufficient to support a sentence for assault with intent to commit murder in either the first or second degree, as the punishment is the same for both.
“The law prescribes the same punishment for an assault with intent to commit murder in the first degree, as in the second degree, and intent is not an element of murder in the third degree.”
Explains why specifying the degree of murder is unnecessary for assault with intent to commit murder.
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Join FLexlaw to unlock all legal intelligenceBerry Edwards was indicted for assault with intent to murder Samuel Dyer. He entered a plea of not guilty. The jury returned a verdict finding him gui…
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Whitfield, J.
— The plaintiff in error was convicted on a charge of assault with intent to commit murder. The only contention made here on the writ of error is that the verdict is improper because it does not state the degree of murder the defendant intended to commit when the assault was made.
The verdict is a part of the record proper and any defect appearing upon the face of it should be determined upon a motion in arrest of judgment. Harris v. State, 53 Fla. 37, 43 South. Rep. 311.
Assuming that the point raised is properly presented in the absence of a motion in arrest of judgment simply by being assigned as error here, it cannot be sustained.
The law prescribes the same punishment for an assault with intent to commit murder in the first degree, as in the second degree, and intent is not an element of murder in the third degree. The statutes of the state do not require or make it necessary that a verdict of assault with intent to commit murder shall state the degree of murder. See Davis v. State, 35 Fla. 614, 17 South. Rep. 565; Griffin v. State, 48 Fla. 42, 37 South. Rep. 209; Jordan v. State, 50 Fla. 94, 39 South. Rep. 155; Pyke v. State, 47 Fla. 93, 36 South. Rep. 577; Williams v. State, 41 Fla. 295, 26 South. Rep. 184.
Section 3208 of the General Statutes requires verdicts to state the degree of murder of which the defendant is found guilty, but it does not apply to verdicts of assault with intent to commit murder. The indictment charged Berry Edwards with an assault with intent to murder Samuel Dyer. A plea of not guilty was entered. The verdict should be read in connection with the indictment. When so considered the intention of the jury to find the defendant guilty of the offense charged is clearly apparent. O’Neal v. State, 54 Fla. 96, 44 South. Rep. 940; Freeman v. State 50 Fla. 38, 39 South. Rep. 785. Having ascertained the intention of the jury as expressed in the verdict, the legal meaning and effect of the verdict are to be determined. All fair intendments consistent with the record are to be indulged in favor of the verdict. Albritton v. State, 54 Fla. 6, 44 South. Rep. 1045; Johnson v. State, 51 Fla. 44, 40 South. Rep. 678. The effect of the language used in the verdict is to find the defendant Berry Edwards guilty of the offense charged in the indictment, viz: An assault ^vith intent to commit murder. The punishment for assault with intent to commit murder in the first degree or in the second degree, is the same, being imprisonment in the penitentiary not more than twenty years. If there can be an assault with intent to commit murder in the third degree, the punishment could.not exceed ten years’ imprisonment.
The verdict is sufficient to warrant a sentence for an assault with intent to commit murder in die first or second degree, the penalty being the same in either degree. As the plaintiff in error was sentenced to two years’ imprisonment, he cannot complain here that the verdict rendered against him is insufficient to support the sentence.
The judgment is affirmed.
Shackleford, C. J., and Cockrell, J., concur;
Taylor, Hocker and Parkhill, JJ., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
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Thomas v. State, 74 Fla. 200 (Fla. 1917)…Henry Thomas guilty of being “a common liquor dealer in violation of law.” See Higginbotham v. State, 42 Fla. 573, 29 South. Rep. 410; Long v. State, 42 Fla. 612, 28 South. Rep. 855; O’Neal v. State, 54 Fla. 96, 44 South. Rep. 940; Edwards v. State, 54 Fla. 40, 45 South. Rep. 21; Williams v. State, 45 Fla. 128, 34 South. Rep. 279; Freeman v. State, 50 Fla. 38, 39 South. Rep. 785. The eighth, ninth and tenth assignments of error attack the form of the judgment. These assignments are well founded. The stat…
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Rentz v. Live Oak Bank, 61 Fla. 403 (Fla. 1911)…ons, 61 Fla. 151, 55 South. Rep. 81. Even so, as the verdict stands, it is sufficient both in form and substance to withstand the attack made upon it, therefore the motion in arrest of judgment was properly overruled. As we held in Edwards v. State, 54 Fla. 40, 45 South. Rep. 21, “all fair intendments consistent with the record should be indulged in favor of the verdict that is responsive to the issues made by the pleadings.” To the same effect is O’Neal v. State, 54 Fla. 96, 44 South. Rep. 940. Two promi…
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Brown v. State, 82 Fla. 306 (Fla. 1921)…ent to murder in either the first or second degree, is under our statute the same offense, the penalty being the same. It is not essential that a verdict of assault with intent to commit murder shall state the degree of murder. See Edwards v. State, 54 Fla. 40, 45 South. Rep. 21; Graham v. State, 72 Fla. 510, 73 South. Rep. 594. The objection to the verdict that it finds the defendant guilty of no offense because it found him guilty as principal in the second degree of an assault with intent to commit mu…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Will Williams v. State, 41 Fla. 295 (Fla. 1899)
- Harris v. State, 53 Fla. 37 (Fla. 1907)
- Johnson v. State, 51 Fla. 44 (Fla. 1906)
- O'Neal v. State, 54 Fla. 96 (Fla. 1907)
- Albritton v. State, 54 Fla. 6 (Fla. 1907)
- Pyke v. State, 47 Fla. 93 (Fla. 1904)
- Jordan v. State, 50 Fla. 94 (Fla. 1905)
- Burt Freeman v. State, 50 Fla. 38 (Fla. 1905)
- Davis v. State, 35 Fla. 614 (Fla. 1895)
- Hamilton Griffin v. State, 48 Fla. 42 (Fla. 1904)