Lindsey v. State

Citations

• 53 Fla. 56

Syllabus

<p>1. Where a' special instruction requested by the defendant to be given by the court as evidenced -by the bill of exceptions in the transcript of the record differs materially from the instruction as it appears in the assignments of error, an appellate court must take the instruction as it appears in the bill of exceptions, and not as it is written in the assignments of error.</p> <p>2. It is the settled -practice in this state that if a party wishes to avail himself of the omission of the court to charge the jury'on any -point in the case, or on all the grades of homicide to which the evidence is reasonably applicable, he must ask the court, at the time, to give the instruction desired, by writing out the instruction desired and presenting same to the judge, otherwise he will .not be permitted to assign the omission to so charge as error.</p> <p>3. If a minor offense is not necessarily included within the terms , of the greater offense as set forth in the indictment or information, the defendant can not be convicted of such minor offense, and it is not error for the trial court to refuse to give in charge to the jury the law applicable to the minor offense.</p> <p>4. The gist of the offense of the crime of assault with intent to murder in the first degree consists in the intent with which the alleged assault is made.</p> <p>5. It is not necessary to the crime of assault with intent to murder under section 2403, Revised Statutes of 1892, and section 3230, General Statutes of 1906, that the assault be made with a deadly weapon, neither is it necessary that the indictment charge the commission of the assault to have been made with a deadly weapon.</p> <p>6. The gist of the offense of an aggravated assault, under section 2402 Revised Statutes of 1892, and section 3228 General Statutes of 1906, consists in the character of the weapon with which the assault is made.</p> <p>7. In a prosecution for aggravated assault, an assault with a deadly weapon must be alleged and p