HARRY NEWTON CARR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harry Newton Carr was convicted of abortion under Florida law and sentenced to three years imprisonment. The District Court of Appeal reversed and remanded for new trial, finding fundamental error where the trial judge repeatedly referred to an "abortion" without qualifying language such as "alleged" or "supposed," thereby implying to the jury that an abortion had occurred when this was a disputed fact at trial.
The trial judge's unqualified references to "abortion" constituted fundamental error depriving the defendant of a fair trial. Such statements implied the judge believed an abortion had occurred when the fact was in dispute. The judgment was reversed and the cause remanded for new trial.
“By thus referring to "abortion", without qualifying the term, such as by saying the alleged abortion or the supposed or the claimed abortion, the trial judge's remarks were such as to show or imply he felt the alleged abortion had occurred, and that what had occurred was an abortion.”
Establishes that the judge's unqualified use of the term constituted error by implying a factual conclusion about a disputed issue.
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Join FLexlaw to unlock all legal intelligenceAppellant Carr was tried in Dade County Criminal Court for abortion under § 797.01, Fla.Stat. A jury convicted him and he was sentenced to three years…
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Appellant was convicted by a jury in the Criminal Court of Record in Dade County of abortion under § 797.01, Fla.Stat., F.S. A., and sentenced to imprisonment for three years. On this appeal, in addition to a question relating to the admissibility of certain evidence which we find is without merit, it is contended on behalf of the appellant that prejudicial error resulted when the trial judge, during the trial and in the presence of the jury, referred to the defendant’s action as being an - abortion, and stated that an abortion had occurred.
The jury was informed by the prosecutor at the outset, and by the trial judge in his charge at the end of the trial, that the defendant was charged with and being tried for abortion. During the trial, on more than one occasion, statements made by the trial judge included a reference to “abortion”.1 In gauging the effect on the jury of those statements by the judge, it should be noted that the very happening of the occurrence was in dispute, and that the evidence on the issues being tried was in conflict. By thus referring to “abortion”, without qualifying the term, such as by saying the alleged abortion or the supposed or the claimed abortion, the trial judge’s remarks were such as to show or imply he felt the alleged abortion had occurred, and that what had occurred was an abortion. For the reasons set out in the authorities cited below, we conclude that those statements by the court amounted to fundamental error depriving the defendant of a fair trial, and that the interest of justice will best be served by remanding the cause for new trial. See Hamilton v. State, Fla.App.1959, 109 So.2d 422; Kellum v. State, Fla.App.1958, 104 So.2d 99; Raulerson v. State, Fla. 1959, 102 So.2d 281; Lester v. State, 37 Fla. 382, 20 So. 232. Although not objected to at trial, error of this nature is properly reviewable under Rule 6.16a, F.A.R., 31 F.S.A. Ap-pellee’s contention that the word “abortion” is in use to denote a lawful as well as an unlawful termination of pregnancy, if correct, is without merit here, because the term was used in the case repeatedly with reference to the offense involved,2 and *30there is no way to know that the jurors did not so regard it as used by the judge. Hamilton v. State, supra. Accordingly, the judgment is reversed and the cause is remanded for new trial.
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Watson v. State, 190 So. 2d 161 (Fla. 1966)…dants, contrary to the principles of law announced in Williams v. State (Fla.) 143 So. 2d 484; State ex rel. Arnold v. Revels, 113 So. 2d 218 (Fla.); Robinson v. State, 161 So. 2d 578 (Fla.); Raulerson v. State, 102 So. 2d 281 (Fla.); Carr v. State, 136 So. 2d 28 (Fla.App.); Lester v. State, 37 Fla. 382, 20 So. 232; and Gans v. State (Fla.App.) 134 So. 2d 257. We have carefully evaluated the questions and the remarks of the trial judge which are complained of by Appellants. We do not find that the trial jud…
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Morriss Wolfe v. State, 256 So. 2d 533 (Fla. 3d DCA 1972)…light of the virtually uniform adherence to another rule refusing to permit a directed verdict of guilty at the close of all the evidence in the trial of a criminal case. See: Ryan v. State, 60 Fla. 25, 53 So. 2d 448 and Carr v. State, Fla.App.1962, 136 So. 2d 28; but cf. Brooks v. United States, 240 F. 2d 905, 906 (5th Cir. 1957), where that court in reversing a conviction for perjury on the grounds of plain error stated: “. . . But as to the authority of the officer who administered the oaths to appellant…
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Erler v. State, 241 So. 2d 202 (Fla. 4th DCA 1970)…43 So. 2d 484; Robinson v. State, Fla.App.1964, 161 So. 2d 578; Hamilton v. State, Fla.App.1959, 109 So. 2d 422; State ex rel. Arnold v. Revels, Fla.App.1959, 113 So. 2d 218; Raulerson v. State, Fla.1958, 102 So. 2d 281; Carr v. State, Fla.App.1962, 136 So. 2d 28; Bethel v. State, supra; and Lester v. State, 1896, 37 Fla. 382, 20 So. 232. A judge’s role in a jury trial is such that his comments are of more importance than those of the litigants and witnesses, and remarks by a judge tending to exhibit a view…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lester v. State, 37 Fla. 382 (Fla. 1896)
- Raulerson v. State, 102 So. 2d 281 (Fla. 1958)
- Hamilton v. State, 109 So. 2d 422 (Fla. 3d DCA 1959)
- Kellum v. State, 104 So. 2d 99 (Fla. 3d DCA 1958)