Johnson v. State

Citations

• 27 Fla. 245

Syllabus

<p>Criminal Law.—Conviction of lower grade of offence included in indictment is an acquittal of the higher, for which higher of-fence no second trial can be bad.</p> <p>1. The defendant was indicted in a single count for murder in the first degree; on a first and second trial he was convicted of murder in the second degree, the verdict at both trals being silent as to the higher crime: Held, that this is tantanrormt to an affirmative acquittal of the higher offence.</p> <p>2. Where a party is tried upon an indictment, that in a single count charges the highest degree of an offence, and that includes lower degrees of the same crime, or that in several counts charges such highest degree and the lower degrees, and he is convicted of one of such lower grades of the offence, on a new trial, obtained at his request, he cannot again be tried for, or convicted of, any higher grade of crime than that of which Ire was at first convicted.</p> <p>3. In such cases, upon such second trial, the party can he arraigned and tried upon the same indictment for the offence of which he was convicted on the first trial, with directions from the. court to the jury that they shall confine their inquiries to the offence of which the party was at first convicted, and to such lower grades of the offence of which he was convicted as may be legally included therein.</p> <p>4. In such cases, upon the second trial, it is unnecessary to specially plead such, former acquittal of the higher offence.</p> <p>5. It is error for the jury, after they have retired to consider their verdict, to have access to law hooks. They should get the law of the case by instructions from the court, and not from their own perusal of the books.</p>