Walker v. State

44 So. 2d 814, 1950 Fla. LEXIS 1307

• Court: Supreme Court of Florida
• Decided: February 21, 1950
• Status: Published

Opinion

44 So.2d 814 (1950)

WALKER
v.
STATE.

Supreme Court of Florida, Division A.

February 21, 1950. Rehearing Denied March 24, 1950.

Sam E. Murrell and Sam E. Murrell, Jr., Orlando, for appellant.

Richard W. Ervin, Attorney General, and Phillip Goldman, Assistant Attorney General, for appellee.

THOMAS, Justice.

The appellant was tried on an information charging him with assault with intent to commit murder in the first degree and was found guilty of assault with intent to commit manslaughter. He challenges here the validity of the judgment finding him guilty of that offense because, he says, there is no such crime under the laws of this state.

Aside from the fact that this court has recognized such an offense, Lassiter v. State, 98 Fla. 370, 123 So. 735, we have but to say with reference to this point that there was ample proof that the appellant committed the crime charged in the information and in such situation he is not in a position forcefully to complain of his conviction of an offense of lesser degree.

Another point presented by the appellant is the excessiveness of the sentence of five years in the state penitentiary, but this is not a matter properly presentable on appeal. The sentence imposed is well within the range of the penalties fixed by the statutes for the offense found by the jury to have been committed, and this being true, this court will not interfere. Brown v. State, 152 Fla. 853, 13 So.2d 458. In that case this principle was enunciated and the ruling in Nowling v. State, 151 Fla. 548, 10 So.2d 130, was expressly overruled.

We have examined the other questions discussed in appellant's brief and find them without merit.

The judgment is

Affirmed.

ADAMS, C.J., and TERRELL and ROBERTS, JJ., concur.