Vann v. State , 127 Fla. 728 ( 1937 )

Buford, J.

The writ of error brings for review a judgment of conviction of the offense of unlawfully receiving stolen property, knowing the same to be stolen property.

The plaintiff in error presents three (3) questions for our determination.

The first question challenges the sufficiency of the evidence. We have considered the evidence and find that it constitutes a sufficient basis for the verdict and judgment.

The second question challenges the action of the court in refusing to give charge numbered 1 in words as follows:

“The court charges you, gentlemen of the jury, that the fact that the State Attorney returned the informatio3r against this defendant is not evidence of his guilt and is not to be considered by you in arriving at your verdict.”

We think if the charge had been correctly drawn the refusal to give it would not have constituted reversible error because it does not appear that any prejudice could have been experienced by the defendant because of its refusal, but the charge is erroneous, the latter part of it being “and is not to be considered by you in arriving' at your verdict.” If this language had been “and is not to be considered as evidence by you in arriving at your verdict” it would have been a correct charge. But it would not have been proper for the Judge to charge the jury that they were not to consider the charge in the information in arriving at their verdict because upon the charge made in the information the jury was bound to arrive at their verdict.

The third question is predicated on the contention that the Court erred in refusing to give charge No. 6 in the following language:

“The Court charges you, gentlemen of the jury, that human liberty is not to be forfeited by conviction under evidence.‘which is not sufficient to convince a fair and impartial mind of the guilt of the accused to a moral certainty and beyond a reasonable doubt.”

The principle of law embraced in this charge was fully given in the charge of the court of its own motion, as well as by other charges requested by the defendant which were given by the court.

We find no reversible error in the record. Therefore the judgment should be and is affirmed. ,

So ordered.

Ellis, C. J., and Whitfield, Brown and Davis, J. J., concur. Terrell, J., dissents.