State v. Howell
This text of 15 Fla. Supp. 163 (State v. Howell) is published on Counsel Stack Legal Research, covering Circuit Court of the 11th Judicial Circuit of Florida, Miami-Dade County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
After reading the record on appeal, the briefs of respective counsel, and oral argument, this court is of the opinion that the information should have been quashed and the appellant discharged.
Assault and battery is not a lesser offense under an information charging aggravated assault. See Hall v. State, Okla. 1957, 309 P. 2d 1096, overruling a long line of decisions in Oklahoma to the contrary, including Smith v. State, 152 P. 2d 279, relied on by appellee.
The language relied upon by appellee used by our Supreme Court in McCormick v. State, 16 So. 2d 49, is dicta, and did not determine the point involved herein.
The case of Russell v. State, Ala. 1935, 165 So. 255, relied upon by appellee, is not analogous.
It is ordered and adjudged that the judgment of the trial court is reversed, and the cause remanded with instructions to quash the information.
Free access — add to your briefcase to read the full text and ask questions with AI
Related
Cite This Page — Counsel Stack
15 Fla. Supp. 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howell-flacirct11mia-1959.