Green v. State , 121 Fla. 307 ( 1935 )

The writ of error brings for review judgment of conviction for the offense of breaking and entering a building, to-wit, a dwelling house, with intent to commit a felony, to-wit grand larceny.

The assignments of error numbered 1 to 8 inclusive, challenge the ruling of the trial court in overruling motion for a new trial. The motion for new trial contained eight grounds, stated as follows:

"1. The verdict is contrary to the law.

"2. The verdict is contrary to the evidence.

"3. The verdict is contrary to the law and to the evidence.

"4. The court failed, in its instructions to the jury, to charge all the law as applicable to the above cause.

"5. The court erred in its instructions to the jury ink reference to the impeachment of a witness.

"6. The court failed to adjudge the defendant guilty.

"7. The sentence of the court is excessive.

"8. The sentence of the court is unnecessarily cruel and severe as evidenced by the remark of the court to the effect that the court would make the sentence such that it would be unnecessary to prosecute another case then pending against the said defendant."

It will be observed that the first three grounds stated are general and present the question as to whether or not the evidence was sufficient to warrant the verdict and judgment. The fourth ground is of no avail because the record shows that no exceptions were taken to the charge of the court and no additional charges were requested and refused. The fifth ground is of no avail because it is too vague and indefinite to bring to the attention of the court the matter sought to be complained of. The sixth ground is of no avail because it is not sustained by the record. The seventh and eighth grounds challenge the wisdom of the sentence imposed by the court and its imposition was a matter within the discretion of the court. If it was excessive the forum in which to question that is that set up by the Constitution, the State Board of Pardons. The eighth assignment of error is in the following language:

"Defendant contends that the court erred in overruling and denying defendant's motion for a new trial because the Court admitted and/or rejected certain evidence in the trial of the case material and relevant to the issues over the objection of the defendant."

This assignment of error cannot be considered by this Court because it is vague, indefinite, uncertain and points out nothing to be relied on as reversible error. The 9th, 10th and 11th assignments of error are likewise defective.

It, therefore, appears that the only question which is submitted to the Court is that of the sufficiency of the evidence to sustain the judgment. A careful consideration of the evidence discloses that it was sufficient to establish in the minds of the jury the existence of every material fact necessary to the conviction.

Counsel in the brief for plaintiff in error have laid some stress on the fact that certain witnesses were allowed to testify to the identity of certain articles found in the possession of the defendant when he was arrested charged with this offense, which articles were stolen from another house at about the same time the house mentioned in the information in this case was burglarized. While this point is not properly raised either by motion for new trial or by the assignments of error we will say that the evidence complained of was admissible under the rule stated in Wallace v. State, 41 Fla. 547, 26 So. 713; and Roberson v. State, 40 Fla. 509, 24 So. 474. In the Wallace case it was said:

"Evidence of another distinct crime committed by a defendant in no way connected by circumstances with the one for which he is being tried, is inadmissible; but proof of any fact with its circumstances, even though amounting to a distinct crime, if it has some relevant bearing upon the issue being tried, is admissible.

"Evidence of defendant's act prior or subsequent to the alleged offense which logically tend to prove the criminal intent or guilty knowledge where they are material is admissible, even though such evidence tends to prove the commission of another offense. Likewise, where the crime charged is one of a system of criminal acts occurring so near together in point of time and so nearly similar in means as to lead to the logical inference that they are all mutually dependent and committed in pursuance of the same deliberate criminal purpose and by means planned beforehand, evidence of such other acts is admissible even though those acts amount to another criminal offense."

In the Roberson case we said:

"Evidence of another and distinct crime committed by a defendant in no way connected by circumstances with the one for which he is being tried is inadmissible, but proof of any fact with its circumstances, even though amounting to a distinct crime, if it has some relative bearing upon the issue being tried is admissible."

Finding no reversible error in the record, the judgment should be affirmed.

It is so ordered.

Affirmed.

WHITFIELD, C.J., and TERRELL, BROWN and DAVIS, J.J., concur.