Simpson v. State

The original opinion in this cause affirmed the judgment of the court below by a divided court under the authority of State, exrel. Hampton v. McClung, 47 Fla. 224, 37 So. 51.

Plaintiff in error, Phillip Simpson, was informed against in the Criminal Court of Record of Dade County for violating provisions of Chapter 16087, Laws of Florida, 1933, known as the Uniform Narcotic Drug Act, in that he was charged with the unlawful sale on March 15, of eight cigarettes containing cannabis, from which the resin had not been extracted.

The record shows that prior to the arraignment plaintiff in error filed a motion to quash the information on numerous grounds stated. The motion was by the lower court denied. He then seasonably applied to the Court for a bill of particulars, which was by the lower court denied. He filed a plea of not guilty and upon trial was by a jury found guilty and by the lower court sentenced to pay a fine of $500.00 or to serve a term in the State Prison for a period of one year. Plaintiff in error sued out writ of error to this Court and here seeks to have the judgment reversed.

The motion to quash the indictment is assigned as error by defendant below. We have examined the motion to quash and the six grounds or reasons therefor.

Plaintiff in error emphasizes the rule laid down in Lamb v. State, 90 Fla. 844, 107 Sou. Rep. 530, and Elliott v. State,77 Fla. 611, 82 Sou. Rep. 139. We have examined the authorities cited in connection with the legal insufficiency of the indictment and fail to find reversible error committed by the lower court in entering the order overruling the motion to quash. See Butler v. Perry, 67 Fla. 405, 66 Sou. Rep. 150 (affirmed240 U.S. 328, 36 Sup. Ct. Rep. 258, 60 L. Ed. 672); Jarvis v. State,73 Fla. 635, 74 Sou. Rep. 794; Crooke v. Van Pelt, 76 Fla. 20, 79 Sou. Rep. 166.

Plaintiff in error complains further that the lower court committed reversible error in not granting his motion for a bill of particulars seasonably presented. This Court has had occasion, from time to time, to pass upon similar questions. The law upon this question is well settled. In the suit of Mathis and Mathis v. State, 45 Fla. 46, 34 Sou. Rep. 287, dealing with this identical question, the Court said:

"An application for a bill of particulars in a criminal case is not founded upon a legal right, but is a matter resting within the sound discretion of the court, depending entirely upon the nature and circumstances of each particular case as they appear to the court before whom the trial is had, and the refusal of the trial judge to grant such a motion will not be disturbed or reversed by an appellate court, unless there was an abuse of such discretion."

See: Thalheim v. State, 38 Fla. 169, 20 Sou. Rep. 938; Thomas v. State, 74 Fla. 200, 76 Sou. Rep. 780. We fail to find error in connection with this adverse ruling.

The following charge to the jury is assigned as error:

"It is unlawful in this State for any person to sell narcotic drugs, except a duly licensed manufacturer, wholesaler or apothecary." * * *

"The Court charges you, gentlemen, that the drug known as cannabis, from which the resin has not been extracted, is a narcotic drug."

The rule seems to prevail that in considering the correctness of a charge of a court to the jury the charge should be considered as an entirety and not single charges pointed out and made the basis for an assignment. The entire charge being considered, we fail to find error in connection therewith. In the suit of Lewis v. State, 55 Fla. 54, text page 63, 45 Sou. Rep. 998, this Court said:

"It is settled law in this court that the passing upon a single instruction or charge it should be considered in connection with all the other instructions and charges bearing on the same subject, and if, when thus considered, the law appears to have been fairly presented to the jury, an assignment predicated upon the giving of such instruction or charge must fail, unless under all the peculiar circumstances of the case the court is of the opinion that such instruction or charge was calculated to confuse, mislead or prejudice the jury. Atlantic Coast Line R. Co. v. Crosby, 53 Fla. 400, 43 South. Rep. 318, and authorities therein cited; Davis v. State, 54 Fla. 34, 44 South. Rep. 757; Atlantic Coast Line R. Co. v. Beazley, 54 Fla. 311, 45 South. Rep. 761; Crosby v. Aby, decided here at this term."

It seems that substantial justice was awarded in the court below and the judgment appealed from is hereby affirmed.

ELLIS, C.J., and WHITFIELD, TERRELL, BROWN, and BUFORD, J.J., concur.