Westcott v. State

31 Fla. 458

• Court: Supreme Court of Florida
• Decided: January 15, 1893
• Status: Published

Opinion

Mabkt, J.:

The first error assigned is, that the record proper fails to show that the indictment was presented by the grand jury in open court. This objection is made for the first time in this court in the assignment of errors here, and counsel has cited ho authorities in support of it, nor has he referred to it in his brief. This .court has ruled that such objections should be made in the trial court where the record is made up, and where it can be made to speak the truth as to what did occur, and that it is too late to urge such objection for the first time in the appellate court. Gallaher vs. State, 17 Fla., 370; Bass vs. State, Ibid, 685.

The certified. copy of the indictment found in th e necord is endorsed in proper form: “The State of Florida vs. Charles Westcott. Indictment for murder. A true bill. M. P. Papy, foreman. Filed in open court this December 2d, A. D. 1892, Council A. Bryan, clerk.” The record before us further shows that a grand jury was organized for the Fall term, A. D. 1892, of the Circuit Court for Leon county, and during this term of the court the grand jury, among other indictments, presented one against Charles Westcott, and noted upon the minute book as follows: “The-State of Florida vs. Charles Westcott. Indictment, murder. Found Fall term, A. D. 1892. A true bill.. M. F. Papy, foreman.” Then follows in the transcript-the copy of the indictment properly signed and endorsed as above. This record is sufficient to show that the 'indictment was properly returned into-court.

The second assignment of error is, that the court-erred in overruling the motion for a new trial; and the-grounds of this motion are, that the verdict was contrary to law, and contrary to the evidence in the case. This assignment of error involves all the questions, presented for our consideration in this case. The verdict of the jury ascertained the degree of the offense— murder in the first degree—and was otherwise rendered in accordance with the forms of law. The testimony, in our judgment, sustains the verdict of the-jury, and the court did not err in overruling the motion for a new trial.

That the accused caused the death of the deceased by cutting her throat with a razor, is shown beyond. all reasonable doubt; and the only possible question that can arise on the testimony, is whether or not the-killing was done with a premeditated design to effect the death of the deceased. The premeditated design which is essential to make out a case of murder in the first degree, is a question of fact for the jury, and in the present case it was properly submitted to them, and found against the accused. The testimony shows that the accused was in the act of intruding himself •into the room of the deceased against her repeated protests, when she hit him over the head with the broom to keep him out, and then with no reason to-apprehend the loss of his life, or serious bodily harm,, he resorted to the deadly razor. The killing was unnecessary and unjustifiable, and was the result of the-defendant’s own wrong. The facts and circumstances of the case justify the finding of the jury, that the killing was done with a premeditated design to kilL

The judgment must, therefore, be affirmed.