Sellars v. State , 96 Fla. 751 ( 1928 )

On petition for rehearing. By petition for rehearing, the Court is requested to examine the principal charge given by the trial court as to those matters of fact requisite to be found by the jury in order to justify a verdict of guilty of perjury, for the purpose of determining whether or not the charge was prejudicial to the defendant as assuming that certain material and controverted facts were conclusively established by the evidence and stating as law matters of fact which the jury should determine. See Hisler v. State, 52 Fla. 30, 42 So. R. 692; Goodbread v. Thomas, 82 Fla. 411, 90 So. R. 156.

Upon the original consideration of this case, the Court carefully scrutinized and weighed the charge in question, having in mind the criticism just stated. The Court was then, and is now, of the opinion that while the charge complained of is somewhat cumbersome, and is not to be commended as a model, it is not sufficiently misleading as an unwarranted charge upon the facts to constitute prejudicial error. The charge commences with the words: "The Court charges you of its own motion that if you believe from the evidence in this case," etc., and after referring to the existence of certain material facts in the manner complained of by the plaintiff in error, concludes with the language: "If you do not so believe, or if you have a reasonable doubt as to his guilt, you will find him not guilty." In view of that language in the charge, and in view of the ample sufficiency of the evidence to which the charge applies to sustain the verdict, if not to conclusively establish the matters of fact in question, we are not convinced that the jury was misled by the charge as a whole.

Rehearing denied.

TERRELL, C. J., AND WHITFIELD, STRUM, BROWN AND BUFORD, J. J., concur.