JAMES BURNETT, APPELLANT,
v.
STATE, APPELLEE
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James Burnett was convicted of first-degree murder and sentenced to life imprisonment for the shooting death of Levy Peacock. The Florida Supreme Court reversed the conviction, holding that the evidence was insufficient to sustain a first-degree murder verdict and that the trial court properly considered Burnett's timely motion for new trial.
The motion for new trial was timely filed because Sundays should be excluded from the computation of the four-day deadline. Additionally, the evidence was insufficient to sustain a verdict of murder in the first degree under an indictment charging premeditated design to effect death.
“Where a Sunday falls within the four-day limitation prescribed by Section 2811, Revised General Statutes of Florida, and is not the last day of that period, such Sunday should be excluded in computing the time allowed for the filing of a motion for a new trial.”
Establishes the rule for excluding Sundays from time computations in motions for new trial
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Join FLexlaw to unlock all legal intelligenceOn May 8, 1939, Burnett was indicted for first-degree murder in the shooting death of Levy Peacock. At trial, Burnett stated that he had the pistol wh…
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On May 8, 1939 appellant was indicted for murder in the first degree, the charge being that appellant unlawfully and from a premeditated design to effect the death of Levy Peacock, a human being, did kill and murder the said Levy Peacock by shooting him with a pistol. On a verdict of murder in- the first degree with recommendation for mercy, defendant was a'djudged guilty and sentenced to life imprisonment in the State penitentiary.
The verdict was rendered on October 26, 1939. A motion for new trial was filed October 31, 1939, and denied November 1, 1939. October 29, 1939, was Sunday. Error is assigned on denial of the motion for new trial, and the State contends that the motion for new trial cannot be reviewed by this Court on appeal because the motion was not filed in the trial court “within four days after the verdict” was rendered. See Secs. 4498 (2811), 8413 (6108) C. G. L. See also Sec. 239, Chapter 19554, Acts of 1939, Criminal Procedure Act, par. 3, Sec. 8663 (248) of 1940 Perm Supp. to C. G. L.
In F. E. C. Ry. Co. v. George, 91 Fla. 42, headnote 4, 107 So. 266, this Court held:
“W'here a Sunday falls within the four-day limitation prescribed by Section 2811, Revised General Statutes of Florida, and is not the last day o-f that period, such Sunday should be excluded in computing the time allowed for the filing of a motion for a new trial.”
The same statute is applicable to criminal cases. Sec. *2228413 (6108) C. G. L. See also Sec. 52, Acts Nov. 23, 1828, Sec. 4497 (2810) C. G. L. The same rule of interpretation is applicable in criminal cases under Section 8413 (6108) C. G. L.
In this case the verdict was rendered Thursday, October 26, 1939. Motion for new trial was filed Tuesday, October 31, 1939. P>y excluding Sunday, October 29, 1939, the motion was filed “within four days” after the verdict was rendered, and was a compliance with the statute as interpreted by this Court.
The transcript of the evidence adduced at the trial has been duly authenticated as a part of the bill of exceptions and made a part of the record by the trial court under the statute. Such evidence has been considered by the Court and is held to be insufficient in its probative force to sustain a verdict of murder in the first degree under an indictment charging a premeditated design to effect the death of the decedent, even though the defendant stated with explanations that he had the pistol-when it exploded.
The judgment will be reversed and the cause remanded for a new trial. See Smithie v. State, 84 Fla. 498, 94 So. 156.
It is so ordered.
Terrel, C. J., Brown, and Buford, J. J., concur.
Thomas, J., agrees to conclusion.
Chapman, J., dissents.
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Am. Sur. Co. OF NEW York v. Andrews, 152 Fla. 638 (Fla. 1943)…469, 67 So. 67; Benedict v. Wilmarth, 46 Fla. 535, 35 So. 84; Dean v. Wilcoxon, 25 Fla. 980, 7 So. 163; Sanderson v. Sanderson’s Adm’rs, 17 Fla. 820; Ritch v. Bellamy, 14 Fla. 537. Counsel for appellants cite Taylor v. Martin, Adm’t., 145 Fla. 253, 198 So. 827; Mitchell v. Bogue, 142 Fla. 787, 196 So. 306; Perry v. Farber, 115 Fla. 410, 155 So. 839; Fieche v. R. E. Householder Co., 98 Fla. 627, 125 So. 2. These cases consider generally the rights of wards in real estate or personal property and are clearl…
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Farrior v. State, 76 So. 2d 148 (Fla. 1954)…9554, Sec. 319, and has now been superseded by F.S.Sec. 920.02, F.S.A., supra, read “motions for new trial [*150] and in arrest of judgment shall be made in the time and manner prescribed for similar motions in civil cases.” And in Burnett v. State, 145 Fla. 220, 198 So. 827, we held that under Sec. 8413, supra, the rule laid down in the civil case of Florida East Coast R. Co. v. George, 91 Fla. 42, 107 So. 266, that an intervening Sunday falling within the four day period prescribed for filing a motion 'fo…
Authorities Cited
- Smithie v. State, 84 Fla. 498 (Fla. 1922)
- Fla. E. Coast Ry. Co. v. George, 91 Fla. 42 (Fla. 1926)