W. J. HOWARD, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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The Florida Supreme Court affirmed a conviction for assault with intent to commit murder, holding that the indictment's description of the assault was not fatally at variance with the evidence that the defendant shot the victim.
No, there was no fatal variance because the act of shooting the victim from the gun bruised and wounded the victim, aligning the allegations with the proof.
“The indictment herein charges that W. J. Howard “with a certain deadly weapon, to-wit: a shotgun, which he then and there had and held in and upon one M. Baggett with a premeditated design and intent, him, the said M. Baggett, then and there unlawfully to kill and murder, then and there an assault did make, and him the said M. Baggett did then and there beat, bruise, wound and ill treat.’’”
Describes the indictment's charges against the defendant.
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Join FLexlaw to unlock all legal intelligenceW. J. Howard was indicted for assault with a deadly weapon (a shotgun) with premeditated design to kill and murder M. Baggett, alleging he did "beat, …
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Whitfield, J.
— The indictment herein charges that W. J. Howard “with a certain deadly weapon, to-wit: a shotgun, which he then and there had and held in and upon one M. Baggett with a premeditated design and intent, him, the said M. Baggett, then and there unlawfully to kill and murder, then and there an assault did make, and him the said M. Baggett did then and there beat, bruise, wound and ill treat.’’
On writ of error to a judgment of conviction of an assault with intent to commit murder in the first degree, it is contended that as the indictment alleges the defendant with the gun did “beat, bruise, wound and ill treat,” and as evidence duly objected to, showed the defendant shot the prosecuting witness, there is a fatal variance between the allegations and the proofs. If appears that the shot fired by the defendant from the gun bruised and wounded the victim, therefore no fatal variance results.
The substance of the charges refused was sufficiently covered by the charges given. No material errors of procedure appear. Judgment affirmed.
All concur.
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Hutchins & Co. v. Sherman, 82 Fla. 167 (Fla. 1921)…ng true, it was unnecessary to give the instruction requested under the doctrine that it is not error for the trial court to refuse to give requested instructions which are substantially covered by charges which the court has given. Howard v. State, 78 Fla. 413, 83 South. Rep. 297; Long v. State, 78 Fla. 465, 83 South. Rep. 293; Hall v. State, 78 Fla. 420, 83 South. Rep. 513, Russell v. State, 78 Fla. 223, 82 South. Rep. 805; Miller v. State, 76 Fla. 521, 80 South. Rep. 314; Hawthorne v. State, 72 Fla. 524…
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Pinkney v. State, 83 Fla. 550 (Fla. 1922)…d this court in many cases has held that it is not error for the trial court to refuse to give charges already substantially given. Blackwell v. State, 79 Fla. 709, 86 South. Rep. 224; Hall v. State, 78 Fla. 420, 83 South. Rep. 513; Howard v. State, 78 Fla. 413, 83 South. Rep. 297; Long v. State, 78 Fla. 464, 83 South. Rep. 293; Russell v. State, 78 Fla. 223, 82 South. Rep. 805; Harris v. State, 75 Fla. 527, 78 South. Rep. 526. The evidence is ample to sustain the verdict, so the judgment will be affirmed…