Jones v. State

256 So. 2d 46, 1971 Fla. App. LEXIS 5552

Opinion

PER CURIAM.

The defendant below was convicted of robbery. On appeal therefrom he contends the trial court erred by refusing to charge the jury on assault as a lesser included offense, and by sustaining an objection, on the ground of hearsay, to a certain question propounded to a witness. We find no reversible error, and affirm.

The court charged the jury on the offense of robbery, and upon the lesser included offenses of larceny, assault with intent to commit robbery, and assault and battery. On the evidence presented no error was committed by the trial court in not charging on simple assault. See Brown v. State, Fla.1971, 245 So.2d 68, 74-75; Delaine v. State, Fla.1971 (Case No. 39,464 not yet reported).

During testimony by the arresting officer, the defendant’s attorney asked the officer what time the complaining witness had told him the alleged robbery took place. The testimony sought to be elicited thereby was inadmissible under the hearsay rule, and was properly excluded. See Har-rolle v. State, Fla.App.1970, 235 So.2d 44, 45.

Affirmed.