W. D. WARD AND G. W. WARD
v.
STATE
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The Florida Supreme Court affirmed a conviction for larceny of cattle, holding that although the trial court's jury charge on possession and recently stolen property was legally incorrect, the defendants waived their right to challenge it by failing to properly object at trial or raise it in the motion for new trial.
The trial court's charge did not correctly state the law, but the defendants waived consideration of this error by failing to take a specific exception to the charge before the jury retired and by failing to raise the erroneous charge as a ground in their motion for new trial. Objections to jury charges cannot be considered on appeal unless properly raised in the trial court.
“The above charge does not correctly state the law, but the record does not show that the defendants requested a charge stating the law correctly.”
Court acknowledges the charge was erroneous but finds it was waived due to procedural defaults
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Join FLexlaw to unlock all legal intelligenceW. D. Ward and G. W. Ward were convicted of larceny of three cows. The defendants were found in possession of recently stolen property. The trial cour…
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The writ of error brings for review a judgment of conviction of the offense of larceny of three certain cows.
The only contention made by the plaintiffs in error is' that reversible error occurred by .reason of the giving of a charge as follows, which was given by the court of its own motion, to-wit:
“The law is that where one is found in the possession of recently stolen property, and does not make a creditable explanation as to how he came into possession of such property, it is prima facie evidence of his guilt of the larceny of that property.
“ ‘Possession’ does not always necessarily mean the ‘actual manual possession’ of the defendant himself. One may be in possession of property through an agent, and have it. through another’s care but it must be under his control.' ‘Possession’ means ‘control.’ ”
The' above charge does not correctly state the law, but the record does not show that the defendants requested a charge stating the law correctly. The only notation of exceptions to the charge is that which appears following all the .charges given by the court which is “and to which charges the defendants then and there noted their exceptions.”
*250The particular charge complained of was not called to the attention of the court and exception particularly noted thereto. Neither was there any contention made in the motion for new trial that any of the charges given by the court were erroneous, nor was the giving of the particular charge now complained of pointed out as a ground for new trial in the motion for new trial.
If the defendants had any objections' to the particular charge which is now complained of, they should have called the matter to the attention of the court by an exception to that charge before the jury retired to consider its verdict and thereby have given the trial court the opportunity to correct, modify or explain the charge as given to the jury; and, failing to do this, it further became the duty of the defendants, when presenting their motion for a new trial, to therein point out what they conceived to be an erroneous charge so that the trial court might have then considered and passed judgment on the validity and sufficiency of the same.
It is well settled that objections to charges cannot be considered unless raised in the court below in one of the modes provided by law. Spanish v. State, 72 Fla. 420, 73 Sou. 230; Williams v. State, 32 Fla. 251, 13 Sou. 429; Bynum v. State, 46 Fla. 142, 35 Sou. 65; Glover v. State, 22 Fla. 493; Stearns, etc., Lbr. Co. v. Adams, 55 Fla. 401, 45 Sou. 847; Steele v. State, 85 Fla. 57, 95 Sou. 299; McSwain v. Howell, 29 Fla. 248, 10 Sou. 588; Frances v. State, 6 Fla. 306.
Therefore, the judgment must be affirmed.
It is so ordered.
Affirmed.
Ellis, P. J., and Terrell, and Buford, J. J., concur.
Whitfield, C. J., and Brown and Davis, J. J., concur in the opinion and judgment.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Solomon v. State, 145 So. 2d 492 (Fla. 2d DCA 1962)…rence or rebuttable presumption of larcenous intent and may be considered by the jury. With reference to other instructions to the jury these in the main were attacked merely by “general exception to the instructions * * * Cf. Ward v. State, 1936, 123 Fla. 248, 168 So. 397; 2 Fla.Jur., Appeals, § 80. An appellate court generally will not reverse because a particular charge may be limited or repetitious where the aggregate charges are not misleading but are, on the whole, fair and correct. Such is the situ…
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Darden v. State, 475 So. 2d 214 (Fla. 1985)…g. (1974). There can be no doubt that objection is required to preserve an error in instructions in a criminal trial. See, e.g., Patrick v. State, 136 Fla. 853, 187 So. 383 (1939); Teddleton v. State, 131 Fla. 106, 178 So. 909 (1938); Ward v. State, 123 Fla. 248, republished on denial of rehearing, 124 Fla. 113, 168 So. 397 (1936). Despite this waiver of error, petitioner now claims that the error was fundamental and therefore need not be preserved by an action at trial. We have reviewed the charge conferen…
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Simpkin v. State, 363 So. 2d 45 (Fla. 3d DCA 1978)…ry of a dwelling. We hold that under the circumstances of this case, fundamental error does not appear and that the defendant has waived the giving of an instruction which would define the word dwelling as used in the information. See Ward v. State, 123 Fla. 248, 166 So. 397; 124 Fla. 113, 168 So. 397 (1936). Further, it is clear that the failure to give an unobjected to, or not requested, jury charge is not ordinarily fundamental error. See Williams v. State, 346 So. 2d 554, 556 (Fla. 3d DCA 1977). We hold…
Authorities Cited
- McSwain v. Howell, 29 Fla. 248 (Fla. 1892)
- Bynum v. State, 46 Fla. 142 (Fla. 1903)
- Spanish v. State, 72 Fla. 420 (Fla. 1916)
- Glover v. State, 22 Fla. 493 (Fla. 1886)
- Williams v. State, 32 Fla. 251 (Fla. 1893)
- Frances v. the State, 6 Fla. 306 (Fla. 1855)
- The Stearns & Culver Lumber Co. v. Adams, 55 Fla. 401 (Fla. 1908)
- Steele v. State, 85 Fla. 57 (Fla. 1923)
- Gabriella Mays v. White, 85 Fla. 150 (Fla. 1923)