Clemons v. State

Citations

• 48 Fla. 9

Syllabus

<p>1. Where in charges given by the trial judge to the jury the following language is used, vis: “The instructions here given you numbered from 1 to 13 inclusive embrace the law of the case which you are to apply to the facts and circumstances as testified to by the witnesses and thus determine the question of the guilt or innocence of the defendants, or either of them,” the use of the words “embrace the law of the case” is unfortunate; but when it clearly appears that the judge gave other charges of his own, and many instructions requested by the defendant, and in so doing used language which could not fail to impress the jury that he did not intend to astrict their consideration solely to charges numbered from 1 to 13, there is no reversible error.</p> <p>2. When a defendant is convicted of manslaughter this court will not consider an assignment of error based on a charge upon murder in the second degree.</p> <p>3. A charge in the following language, vis: “If you believe from the evidence that Lafayette Clemons began the difficulty with Smith and beat him, either with metallic knucks or a similar weapon, until Smith’s death resulted, that the killing of Smith was not murder in any of the degrees as hereinbefore defined, and was not justifiable or excusable homicide as explained in these instructions, you should convict him of manslaughter,” is not obnoxious to the objection that it assumes “metallic knucks or a similar weapon” were deadly weapons.</p> <p>4. A defendant in a criminal case can not avail himself of an error in his own favor, or of an error in a charge given’by the trial judge when the same error is embraced in instructions requested by him, and given by the judge.</p> <p>5. A charge by the trial judge giving the jury a form for a verdict of conviction is not erroneous because it contains no allusion to the right or power of the jury to acquit. If a defendant desires a form of a verdict of acquittal, it should be requested.</p> <p>6. A charge in the f