West v. State

Citations

• 55 Fla. 200

Syllabus

<p>i. Where a trial is had upon an indictment charging murder in the first degree and the verdict is for manslaughter, it is in effect an acquittal of the crime of murder in all its degrees; and on a new trial obtained at the instance of the defendant, he cannot again be tried for or convicted of any grade of crime higher than manslaughter. In such cases the court should, at the outset of the new trial, instruct, the jury that they must confine their inquiries to the offense of manslaughter, and to the lower grades of crime included in the crime of manslaughter.</p> <p>*. Where on an indictment for murder in the first degree, the defendant is convicted of manslaughter and secures a new trial, and on a new trial the court does not instruct the jury to confine their inquiries to the crime of manslaughter and the offenses included therein, it is error for the court in overruling an objection to argument by the State Attorney as to whether the killing was done with a premeditated design to effect death of a person, to state that whether the evidence showed premeditation was a question for the jury to determine, even though such ruling is coupled with the statement that the jury could not find the defendant guilty of murder in the first degree. Premeditation is an element of murder in the first • degree but not of manslaughter, and whether there was premeditation should not be submitted to the jury in a trial for manslaughter.</p> <p>3. Remarks by-the trial judge made in the hearing of the jury in making rulings during the trial will have the same effect as formal instructions;</p> <p>4. In a prosecution for manslaughter it is error for the court to state in its rulings in the presence of the jury that whether the testimony “should show premeditation or not is a question for the jury to determine” and “that if the evidence is sufficient to satisfy the jury that a murder had been committed, and even though that evidence should justify a verdict of murder in the first degr