JOHN HOLLOMAN
v.
STATE
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John Holloman was convicted of manslaughter by jury verdict but sentenced to five years imprisonment for murder in the second degree. The Florida Supreme Court reversed and remanded because the trial court's judgment and sentence must conform to the jury's verdict, not the higher offense charged in the indictment.
The court held that: (1) the manslaughter verdict cannot be disturbed because the evidence was sufficient to support the greater offense of murder in the second degree; (2) the jury instruction claim was forfeited because defendant failed to request the instruction at trial; and (3) the prosecutor's remarks could not be reviewed because they were not reported in the record. Critically, the trial court's judgment and sentence must conform to the jury's verdict, not the higher charge.
“the verdict will not be set aside as contrary to the evidence, if the evidence would have supported a conviction of the greater offense.”
Establishes that a conviction of a lesser included offense is proper when evidence supports the greater charge under Florida statute.
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Join FLexlaw to unlock all legal intelligenceHolloman was indicted for murder in the second degree in Hamilton County. The jury returned a verdict of guilty of manslaughter. The trial court, howe…
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The. plaintiff in error, defendant below, was tried in Hamilton County under an indictment for *61murder in the second degree. The jury returned a verdict of manslaughter; and thereupon the court adjudged the defendant guilty of murder in the second degree, sentencing him to five years in the State prison. The plaintiff in error assigns as the sole error of the court below: “The court erred in overruling and denying the defendant’s motion for a new trial.” In considering this assignment of error the plaintiff in error presents three questions to this Court for determination.
The first question challenges the sufficiency of the evidence to sustain the conviction of the defendant.
The indictment in the instant case charges the defendant with murder in the second degree. The jury returned a verdict of manslaughter. Chapter 4392, Acts 1895, Section 8415 C. G. L. of Florida of 1927 provides: •
“In all criminal prosecutions hereafter begun in this State, if the defendant be found guilty of an offense lesser in degree, but included within the offense charged in the indictment or information, such verdict shall not be set aside by the court, upon the ground that such verdict is contrary to the evidence, if the evidence produced in such case would have supported a finding, or if such court would have sustained a verdict of guilty of the greater offense.”
In view of this statute this Court has repeatedly held that where the defendant is convicted of a lesser offense included within the higher offense charged in the indictment information, the verdict will not be set aside as contrary to the evidence, if the evidence would have supported a conviction of the greater offense. See McCoy v. State, 40 Fla. 494, 24 Sou. Rep. 495; Mobley v. State, 41 Fla. 621, 26 Sou. Rep. 732; Morrison v. State, 42 Fla. 149, 28 Sou. Rep. 97; Dedge v. State, 68 Fla. 240, 67 Sou. Rep. 43; Larmon v. State, 81 Fla. 553, 88 Sou. Rep. 741; Ammons v. State, 88 *62Fla. 444, 102 Sou. Rep. 642; Roberts v. State, 94 Fla. 149, 113 Sou. Rep. 726; Williams v. State, 73 Fla. 1198, 75 Sou. Rep. 785; Clark v. State, 88 Fla. 186, 101 Sou. Rep. 352; Lovett v. State, 95 Fla. 269, 116 Sou. Rep. 7; Jenkins v. State, 100 Fla. 1599, 132 Sou. Rep. 198.
Likewise this Court has held that an indictment or information sufficiently charging murder in the second degree includes a charge of manslaughter. Sallas v. State, 61 Fla. 59, 54 Sou. Rep. 773. The information in the present case charging murder in the second degree, therefore, included the charge of manslaughter.
The evidence herein has been thoroughly examined and found sufficient to support a conviction of murder in the second degree; therefore, the verdict of manslaughter cannot, under the above section of our statutes, be disturbed by this Court. See the above cited cases.
The second question involves instructions to the jury. The plaintiff in error contends that it was error to allow the co-defendant to testify at the trial in prison clothes without instructing the jury that the co-defendant was serving sentence for a conviction of another crime and that he had not previously been convicted of the offense with which this defendant was charged.
The record fails to show that the plaintiff in error presented any request, written or otherwise, for instructions by the court on this phase of the trial. Hence, the court below has had no opportunity to consider the instruction contended for and will not be held in error where the instructions actually are not contested and put in the record so that this Court might full}'- consider them. See Marlow v. State, 139 Fla. 307, 190 South. Rep. 602; Rawlins v. State, 40 Fla. 155, 24 Sou. Rep. 65; Douglass v. State, 53 Fla. 27, 43 Sou. Rep. 424; Padgett v. State, 64 Fla. 389, 59 Sou. Rep. *63946; Ann. Cas. 1914B 897; Gillyard v. State, 65 Fla. 322, 61 Sou. Rep. 641; Hicks v. State, 75 Fla. 311, 78 Sou. Rep. 270; Hobbs v. State, 77 Fla. 228, 81 Sou. Rep. 444; Turner v. State, 99 Fla. 246, 126 Sou. Rep. 158; Irving v. State, 19 Fla. 872; Lindsey v. State, 53 Fla. 56, 43 Sou. Rep. 87; Tindall v. State, 99 Fla. 1132, 128 Sou. Rep. 494.
The third question presented to this Court has reference to certain remarks of the prosecuting attorney but there is nothing in the record to show what those remarks were.
The argument to the jury is not reported and the allegations in the motion are not self-proving so there is no showing that the statement was made. See Smith v. State, 90 Fla. 555, 106 Sou. Rep. 415; Noble v. State, 68 Fla. 1, 66 Sou. Rep. 153; Stanley v. State, 93 Fla. 372, 112 Sou. Rep. 63.
The case will, however, have to be reversed and remanded to the lower court. It is well settled in this jurisdiction that:
“While, generally speaking, the consideration of the appellate court will be confined to the errors assigned and argued by the plaintiff in error, yet, to this rule there are certain exceptions. Where a jurisdictional or other fundamental error of law is apparent on the face, of the record itself, such error ma3r be considered by the appellate court, though it is not assigned. Demeter Land Co. v. Florida Public Service Corp., 99 Fla. 954, 128 Sou. Rep. 402; Hoodless v. Jernigan, 46 Fla. 213, 35 Sou. Rep. 656; Parker v. Dekle, 46 Fla. 452, 35 Sou. Rep. 4; East Coast Stores v. Cuthbert, 101 Fla. 25, 133 Sou. Rep. 863; Bynum v. State, 76 Fla. 618, 80 Sou. Rep. 572; White v. Crandall, 105 Fla. 70, 137 Sou. Rep. 272; Gunn v. State, 78 Fla. 599, 83 Sou. Rep. 511; O’Steen v. State, 92 Fla. 1062, 1066, 1075, 111 Sou. Rep. 725; Gober v. Braddock, 100 Fla. 1406, 131 Sou. Rep. 407.”
*64The jury in this case returned a verdict of manslaughter; whereas the court pronounced judgment and sentence for murder in the second degree. The judgment of the court-must conform to the verdict of the jury. Sec Hughes v. State, 86 Fla. 202, 97 Sou. Rep. 478; Ellis v. State, 100 Fla. 27, 129 Sou. Rep. 106, 69 A. L. R. 783; Vogel v. State, 124 Fla. 409, 168 Sou. Rep. 539.
This error on the part of the lower court does not, however, entitle the plaintiff in error to a new trial; but the case will have to be remanded for the pronouncement of proper judgment and sentence. See Keech v. State, 15 Fla. 591; Roberts v. State, 30 Fla. 82, 11 Sou. Rep. 536; Wallace v. State, 41 Fla. 547, 26 Sou. Rep. 713; Irvin v. State, 52 Fla. 51, 41 Sou. Rep. 785; Jones v. State, 64 Fla. 92, 59 Sou. Rep. 892, L. R. A. 1915B 71; Hunter v. State, 64 Fla. 315, 60 Sou. Rep. 786; Taylor v. State, 67 Fla. 127, 64 Sou. Rep. 454; Smith v. State, 71 Fla. 639, 71 Sou. Rep. 915; Payner v. State, 81 Fla. 726, 88 Sou. Rep. 762; Cooper v. State, 83 Fla. 34, 90 Sou. Rep. 693; Brooke v. State, 99 Fla. 1275, 128 Sou. Rep. 814, 69 A. L. R. 1173; Ellis v. State, 100 Fla. 27, 129 Sou. Rep. 106, 69 A. L. R. 783; State ex rel. House v. Mayo, 122 Fla. 23, 164 Sou. Rep. 673.
For the above reasons the judgment is reversed and the cause remanded to the lower court for the pronouncement of a proper judgment and sentence.
Reversed.
Whitfield, P. J., and Brown and Chapman, J. J., concur.
Terrell, C. J., concurs in opinion and judgment.
Justices Buford and Thomas not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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Citator
Cited By (13 total)
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Perkins v. Mayo, 92 So. 2d 641 (Fla. 1957)…1 So. 190. It is further settled that one cannot be charged with a crime under one statute and prosecuted under another. Young v. State, 142 Fla. 361, 195 So. 569. The judgment of guilty by the trial court must conform to verdict. Holloman v. State, 140 Fla. 59, 191 So. 36; Lewis v. State, 154 Fla. 825, 19 So. 2d 199. It is not inappropriate to point out that a judgment of guilt must conform to the offense for which a plea of guilty was proffered and that one cannot plead guilty to one offense and be adjud…
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Young v. State, 140 So. 2d 97 (Fla. 1962)…v. State, 150 Fla. 789, 9 So. 2d 180;. Norris v. State, 150 Fla. 686, 8 So. 2d 493. Averments of motions for new trial are not self-supporting. White v. State, 121 Fla. 128, 163 So. 403; Hulst v. State, 123 Fla. 315, 166 So. 828; Holloman v. State, 140 Fla. 59, 191 So. 36. In Smith v. State, 57 Fla. 24, 48 So. 744, the court said: “The assertions of facts contained as grounds of a motion for new trial are not self-varying before an appellate court and, unless the truth of such assertions is elsewhere pro…
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Singleton v. State, 183 So. 2d 245 (Fla. 2d DCA 1966)…motion for new trial, but such motion is not self proving. The court is unable therefore to review the question.” To the same effect see Houghton v. State, Fla.App.1961, 133 So. 2d 111; Hulst v. State, 123 Fla. 315, 166 So. 828; Holloman v. State, 140 Fla. 59, 191 So. 36; and Norris v. State, 150 Fla. 686, 8 So. 2d 493. These cases involve attempts to raise the impropriety of alleged prejudicial remarks only by their bare and unsubstantiated inclusion in a Motion for New Trial. As to whether such commen…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (52 total)
- Wallace v. State, 26 So. 713 (Fla. 1899)
- Hoodless v. Jernigan, 46 Fla. 213 (Fla. 1903)
- Ellis v. State, 100 Fla. 27 (Fla. 1930)
- Demeter Land Co. v. Fla. Pub. Serv. Co., 99 Fla. 954 (Fla. 1930)
- Will Tindall v. State, 99 Fla. 1132 (Fla. 1930)
- O'Steen v. State, 111 So. 725 (Fla. 1926)
- McCoy v. State, 40 Fla. 494 (Fla. 1898)
- Irvin v. State, 19 Fla. 872 (Fla. 1883)
- Pleas Lindsey v. State, 53 Fla. 56 (Fla. 1907)
- Padgett v. State, 64 Fla. 389 (Fla. 1912)