Judges: BUFORD, J.:
Attorneys: Alvan B. Rowe, for appellant.
J. Tom Watson, Attorney General, and Reeves Bowen, Assistant Attorney General, for appellee.
Filed: Jul. 10, 1945
Latest Update: Mar. 02, 2020
Summary: Appellant, being indicted, charged with the crime of murder in the first degree, was, on trial, convicted of manslaughter. *Page 354 After careful consideration, we find only one reversible error in the record. It might have been necessary for us to discuss some other alleged errors if the appellant had been convicted of a higher degree of unlawful homicide than manslaughter, but the verdict of guilty of manslaughter was an acquittal of any higher degree of unlawful homicide and, therefore, elim
Summary: Appellant, being indicted, charged with the crime of murder in the first degree, was, on trial, convicted of manslaughter. *Page 354 After careful consideration, we find only one reversible error in the record. It might have been necessary for us to discuss some other alleged errors if the appellant had been convicted of a higher degree of unlawful homicide than manslaughter, but the verdict of guilty of manslaughter was an acquittal of any higher degree of unlawful homicide and, therefore, elimi..
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I think the conclusion reached is a departure from our ruling in cases viz: Walker v. State, 82 Fla. 465, 90 So. 376, where we held that "or the lack of evidence," while subject to criticism, was not reversible error; Vasque v. State, 54 Fla. 127,44 So. 739, where the words "or the lack of evidence" was not ground for reversal. The rule was reaffirmed by this Court in Bennet v. State, 127 Fla. 759, 173 So. 817; reaffirmed in Kimball v. State, 134 Fla. 849, 184 So. 847.
In State v. Anderson, 209 Iowa 510, 228 N.W. 353, 67 A.L.R. 1366, the cited cases hold that two states — Mississippi and Missouri — hold to the minority rule viz: that in a definition of reasonable doubt, omitting "or the lack of evidence" is reversible error. Most other states, inclusive of Florida, hold that it is not reversible error to omit "or the lack of evidence" from a charge defining reasonable doubt. See 67 A.L.R. 1379. Florida is committed to the rule that the omission of the words "or the lack of evidence" from a charge defining reasonable doubt is not erroneous.
THOMAS and SEBRING, JJ., concur.
