ALLEN CASON, PLAINTIFF IN ERROR,
v.
THE STATE OF FLORIDA, DEFENDANT IN ERROR
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Allen Cason was convicted of assault with intent to commit murder in the first degree. On appeal, he challenged the sufficiency of evidence, the trial court's failure to instruct the jury on lesser included offenses, and the admission of physical evidence. The Florida Supreme Court affirmed the conviction, finding the evidence sufficient, the jury instruction issue forfeited by lack of request, and the evidentiary rulings proper.
The court affirmed the conviction, holding that the evidence was sufficient because the victim positively identified the defendant; the jury instruction issue was forfeited because no instruction was requested at trial; and the physical evidence was properly admitted because its identity was sufficiently established and the trial court did not abuse its discretion.
“if a party wishes to avail himself of the omission of the court to charge the jury on any point in the case, he must ask the court to give the instruction desired; otherwise he will not be permitted to assign the omission as error.”
Establishes the procedural rule that jury instruction errors are forfeited unless requested at trial, applying established law from Cross v. State and other precedents.
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Join FLexlaw to unlock all legal intelligenceAllen Cason was indicted and tried for assault with intent to commit murder in the first degree. The victim of the assault, who was shot, positively i…
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West, J.
Plaintiff in error, Allen Cason, was indicted and tried upon a charge of assault with intent to commit murder in the first degree. The verdict returned found him guilty as charged. To review the judgment imposing sentence upon him writ of error was taken from this court.
There are a number of assignments of error, but generally they may be grouped under three heads, namely; (1) the sufficiency of the evidence to support the verdict; (2) the failure of the trial court to instruct the jury upon the law applicable to lower degrees of offense charged in the indictment than assault with intent to commit murder in the first degree; and (3) rulings of the court overruling objections on behalf of defendant to the admission in evidence of a pistol and certain bullets and clothing and other articles.
With respect to the first question the principal contention is that the identity of the accused was not proved. The answer to this contention is that the victim of the assault, who was shot, positively identified the defendant as the man who shot him. He testified that he knew the defendant and' that he saw him and recognized him at the time of the shooting. There is' other evidence of circumstances tending to corroborate this evidence. Although contradicted by the defendant, the jury apparently believed it to be true. There is nothing in the record to indicate that the jury were influenced by anything other than a due consideration of the evidence. The contention that the evidence does not support the verdict cannot be sustained.
Upon the second question the rule is well established in this jurisdiction that “if a party wishes to avail himself of the omission of the court to charge the jury on any point in the case, he must ask the court to give the instruction desired; otherwise he will not be permitted to assign the omission as error.” Cross v. State, 73 Fla. 530, 74 South. Rep. 593; Herndon v. State, 73 Fla. 451, 74 South. Rep. 511; Hicks v. State, 75 Fla. 311, 78 South. Rep. 270; Miller v. State, 76 Fla. 518, 80 South. Rep. 314; Hobbs v. State, 77 Fla. 228, 81 South. Rep. 444; Witt v. State, 80 Fla. 38, 85 South. Rep. 249. If there is anything to the contrary in the case of Johnson v. State, 53 Fla. 45, 43 South. Rep. 779, it is overruled by Cross v. State, supra. No instruction on the point was requested.
It is considered unnecessary to review the evidence of identity of the several articles which were offered and received in evidence. Their identity, we think, was sufficiently shown to permit their introduction, and the orders of the court overruling objections interposed and refusing to exclude them were not erroneous.
There was no abuse of its discretion by the trial court in permitting witnesses who were officers of the court, one a deputy sheriff and one an attorney, to be examined and give evidence on behalf of the State, over objection of defendant that they had not been placed under the rule. Romano v. Palazzo, 83 Fla. 243, 91 South. Rep. 115; Morasso v. State, 74 Fla. 269, 76 South. Rep. 777. Nor has any other error of procedure been made to appear upon the record by the exhaustive and able briefs of counsel.
The judgment is affirmed.
Whitfield, P. J., and Terrell, J., concur. Taylor, C. J., and Ellis and Browne, J. J., concur in the opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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West v. State, 6 So. 2d 7 (Fla. 1942)…hese four witnesses to remain in the court room when testimony was being taken. In the absence of a showing of an abuse of discretion, it is clear that reversible error was not committed. See Morasso v. State,74 Fla. 269, 76 So. 777; Cason v. State, 86 Fla. 276,97 So. 720. It is next contended that the testimony adduced was legally insufficient to sustain the verdict and judgment. The appellant testified during a trial in the County Judge's Court of Jackson County, Florida, that he did not have a conceale…
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McKenna v. State, 119 Fla. 576 (Fla. 1934)…Fla. 150, 45 So. 1023; Key West v. Baldwin, 69 Fla. 136, 67 So. 808; Herndon v. State, 73 Fla. 451, 74 So. 511; Cross v. State, 73 Fla. 530, 74 So. 593; Hobbs v. State, 77 Fla. 228, 81 So. 444; Witt v. State, 80 Fla. 38, 85 So. 249; Cason v. State, 86 Fla. 276, 97 So. 720; Stanley v. State, 93 Fla. 372, 112 So. 73; Peninsular Naval Stores v. Mathers, 96 Fla. 620, 119 So. 333.” See also Miller v. State, 76 Fla. 581, 80 Sou. 314; and Merchants Transportation Co. v. Daniel, 109 Fla. 447, 147 Sou. 897. In th…
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Silver Lake Ests. Corp. v. Merrill, 120 Fla. 467 (Fla. 1935)…Fla. 150, 45 So. 1023; Key West v. Baldwin, 69 Fla. 136, 67 So. 808; Herndon v. State, 73 Fla. 451, 74 So. 511; Cross v. State, 73 Fla. 530, 74 So. 593; Hobbs v. State, 77 Fla. 228, 81 So. 444; Witt v. State, 80 Fla. 38, 85 So. 249; Cason v. State, 86 Fla. 276, 97 So. 720; Stanley v. State, 93 Fla. 372, 112 So. 73; Peninsular Naval Stores Co. v. Mathers, 96 Fla. 620, 119 So. 333.” “In order to enable an appellate court to review the ruling of the trial court in giving or refusing charges an exception dul…
Authorities Cited
- Herndon v. State, 73 Fla. 451 (Fla. 1917)
- Romano v. Palazzo, 83 Fla. 243 (Fla. 1922)
- Creveling v. Chambers, 73 Fla. 512 (Fla. 1917)
- Morasso v. State, 74 Fla. 269 (Fla. 1917)
- Witt v. State, 80 Fla. 38 (Fla. 1920)
- Hobbs v. State, 77 Fla. 228 (Fla. 1919)
- Johnson v. State, 53 Fla. 45 (Fla. 1907)
- Miller v. State, 76 Fla. 518 (Fla. 1918)
- Hicks v. State, 75 Fla. 311 (Fla. 1918)
- Cross v. State, 73 Fla. 530 (Fla. 1917)