Sessions v. State

Citations

• 82 Fla. 248
• 89 So. 553

Syllabus

<p>1. Where an indictment for murder of W. charges that the defendant shot off and discharged a pistol “at, upon and into the sa-id W., thereby and thus striking the said W. with said leaden bullets, inflicting on and in the body of the said W. one mortal wound,” etc., proof that the mortal wound was in the head of W., is hot a fatal variance, since in yiew of the terms of the indictment the words “and in the body of” may be regarded as meaning “and in the person of,” or as being surplusage.</p> <p>2. It is well settled that a defendant is not entitled as of right to an instruction to the jury to return a verdict of acquittal.</p> <p>3. An instruction in a trial for murder that there is no evidence before the jury authorizing a conviction for a particular degree of unlawful homicide violates the spirit of the statute requiring the charge to be upon “the law of the case only,” but such a charge, though technically erroneous, will not constitute reversible error, if it relates to a higher degree than that of which the accused was convicted, or if it relates to a degree lower, but there was no testimony before the jury from which it could with any-reason have formed a verdict of guilty of the excluded lesser degree.</p> <p>4. Where the evidence is ample to sustain the verdict and no error appears, the judgment will be affirmed.</p>