Brown v. State

By petition for certiorari we are requested to review a decision of the Court of Appeal, Second District, on the ground of alleged conflicts with stated prior decisions of this Court on the same points of law. Article V, Section 4(2), Florida Constitution, F.S.A.

We must decide whether a fundamental error occurs in a first degree murder trial when the trial judge advises the jury that under the facts third degree murder “can in nowise be applicable.”

Petitioner Brown was tried pursuant to an indictment charging murder in the first degree. He was convicted of murder in the second degree. At the conclusion of the trial the trial judge instructed the jury on the various degrees of unlawful homicide and added “murder in the third degree can, in nowise, be applicable in this case.” No objection was urged during the trial. The defendant did not request an instruction to the effect that the jury could bring in a verdict of murder in the third degree. The matter was never raised in the trial court until the trial judge himself on a motion for new trial concluded that this Court in Pait v. State, Fla., 112 So.2d 380, had in effect decided that the failure to instruct on all degrees of homicide in a first degree murder case constitutes a fundamental error which requires a new trial regardless of request by the accused. From the ruling granting the new trial the state appealed. The Court of Appeal, Second District, in State v. Brown, Fla.App., 1960, 118 So.2d 574 concluded that while the instruction on the non-applicability of third' degree murder should not have been given, the giving thereof in the absence of objection by the defendant or a specific request to the contrary did not constitute a fundamental error sufficient to justify a new trial. We are now requested to review this decision of the Court of Appeal with the contention that it conflicts with the prior decisions of this Court in Pait v. State, supra, Killen v. State, Fla., 92 So.2d 825, and Henderson v. State, 155 Fla. 487, 20 So.2d 649.

Because of ostensible conflict we accepted jurisdiction and have heard the matter on the merits.

Petitioner Brown contends that in the cited cases this Court has held that it is essential to the validity of a first degree murder trial that the jury be advised that it can find the defendant guilty of any degree of unlawful homicide. He asserts that his failure to object at the instant trial'or request an instruction on the subject is of no consequence because in his view the error was fundamental to the validity of the trial and can be reviewed on appeal under the decision of this Court in Henderson v. State, supra.

It is simply the position of the State that if error was committed it was not of such fundamental nature as to justify a new trial in the absence of objections or request by defendant.

For coherence we remind that the decision of the Court of Appeal reversed the trial judge who had the view that the error was fundamental in nature and justified a new trial regardless of objections or request by the defendant. The Court of Appeal adopted the position that the error was not fundamental. It held that the trial judge committed error when he granted the new trial in the absence of objections or request by the defendant during the course of the trial. It is this conclusion of the Court of Appeal which we now examine.

This Court is now definitely committed to the rule that wherever evidence is sufficient to sustain a charge of murder in the first degree, whether committed in the perpetration of certain felonies or whether from a specific premeditated design a verdict convicting a defendant of a lesser degree of homicide will not be disturbed even though there is no evidence of the particular degree of the offense for which he might be convicted. We have taken the view that the responsibility of determining the degree of guilt in such cases rests peculiarly within the bosom of the trial jury. Killen v. State, Fla., 92 So.2d 825.

To make clear our position which we had hoped was sufficiently explicit in Killen v. State, supra, we repeat here that which we announced there to the effect that under Section 919.14, Florida Statutes, as amended in 1939, F.S.A., the Court should in all cases instruct the jury on the various degrees of the offense charged in the indictment. When the offense charged is first degree murder, whether grounded on specifically alleged premeditated design, or whether committed in the perpetration of certain felonies as proscribed by Section 782.04, Florida Statutes, F.S.A., the defendant is entitled to have the jury advised on all the degrees of unlawful homicide, including manslaughter. There should be a further instruction that it is in the province of the jury to determine the degree. Killen v. State, supra.

The question which now challenges our attention is whether the failure of a trial judge to give such an instruction constitutes a reversible fundamental error when the accused fails to request the instruction or fails to object to any instruction actually given! In-the instant case the trial judge told the. jury that third degree murder could in nowise be applicable The defendant and his counsel remained silent, urged no objection and made no request for a contrary instruction. As a matter of fact, the point was not specified in the motion for a new trial. The trial judge himself sua sponte raised the point in view of his interpretation of certain language used by this Court in Pait v. State, Fla., 112 So.2d 380. In the case last cited we merely pointed out that we had observed the absence of an instruction on third degree murder and inasr much as the case was being reversed on other grounds we simply invited the attention of the trial judge to this deficiency in order to forestall a possible recurrence of the error at a subsequent trial. Our language on this point could probably be classed as dictum although we felt that we made it expressly clear that we were not ruling on the point as an error for reversal but merely as a guide to the trial judge upon the event of another trial. There is no basis for extracting from State v. Pait, supra, any notion that we there held that the failure to instruct on third degree murder in a first degree murder case constitutes reversible error in the absence of an appropriate request for such an instruction by the accused.

This latter position we thought was made clear by our opinion in Williams v. State, Fla., 117 So.2d 473. In that case we pointed out that there was a failure to charge on a lesser degree of unlawful homicide. We declined to hold the error to be fundamental so as to render the judgment of conviction erroneous on that score, there being no objections raised at the trial.

To summarize our position, we herewith hold that in any trial for first degree murder the accused is entitled to have the jury instructed on all degrees of unlawful homicide including manslaughter and error is committed if he requests such an instruction and is refused. On the other hand, if the accused fails to request such an instruction or fails by timely objection to bring to the attention of the trial judge an error in any such instruction given he cannot urge the error for the first time on appeal. Section 918.10(4), Florida Statutes, F.S.A.

We do not overlook the contention of the petitioner that the error was fundamental to the validity of the trial and required a new trial regardless of the failure of the accused to make timely objections or request. On this point the petitioner relies entirely upon the decision of this Court in Henderson v. State, 155 Fla., 487, 20 So.2d 649. In that case it was held that the trial judge completely invaded the province of the jury by a series of instructions which in effect eliminated entirely the jury function in the trial of the case. The basic error consisted in the fact that the judge took over the entire jury function in concluding that the various essential elements of the offense had been established and he then proceeded to instruct the jury accordingly. The multiple errors were such that this Court concluded that they permeated the validity of the trial itself and that under the circumstances a conviction could not have been obtained absent the errors.

This is the rule which we have adopted in ascertaining whether we will view a particular error as fundamental. In Hamilton v. State, Fla., 88 So.2d 606, we specifically stated that in order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. For example, where the State relied entirely upon a confession to obtain a first degree murder conviction it was fundamental error for the trial judge to fail to advise the jury on the weight to be given a confession even though no such charge was requested. Harrison v. State, 149 Fla. 365, 5 So.2d 703. Similarly, in one of the leading cases on this subject, Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, the Supreme Court of the United States concluded that a murder conviction was fundamentally erroneous when the state relied entirely on a confession and the trial judge had failed to ascertain its voluntary character. In both of these cases there was no other evidence which would have supported the conviction.

On the other hand, in Thompson v. State, 154 Fla. 323, 17 So.2d 395, also a capital case, the trial judge failed to instruct on the weight to be given a confession. We held that this was not a fundamental error because there was other evidence adequate to sustain the conviction even in the absence of the confession.

In the instant case there has been no contention that the error of the trial judge necessarily and inescapably produced the ultimate jury verdict. So far as this record reveals there was adequate evidence to sustain the conviction regardless of the error of the judge. In other words, the alleged error did not permeate or saturate the trial with such basic invalidity as to lead to a reversal regardless of a timely objection under Section 918.10(4), Florida Statutes, F.S.A. See also, Boston v. State, 153 Fla. 698, 15 So.2d 607; Sinnefia et al. v. State, Fla.App.1958, 100 So.2d 837.

Evidencing our consistent view that a failure to instruct on a lesser degree of homicide in a first degree murder case does not constitute a fundamental error which requires a reversal in the absence of a proper objection in the trial court, the state points to over fifteen decisions of this court during the past five years in which we have affirmed murder convictions despite the absence of an instruction on one or another of the lesser degrees of unlawful homicide. The latest decision of this nature is Brooks v. State, Fla.1960, 117 So.2d 482, in which we affirmed a murder conviction with the supreme penalty although the record will reveal that there was no instruction on third degree murder.

Although potential conflict with prior decisions of this Court appeared to justify the issuance of the writ and a hearing on the merits, we are now convinced that the decision of the Court of Appeal under review does not conflict with any prior decision of this Court on the same point of law. The writ is therefore discharged.

It is so ordered.

THOMAS, C. J., and ROBERTS and and O’CONNELL, JJ., concur.

DREW, J., dissents.