McDonald v. State , 55 Fla. 134 ( 1908 )

Whitfield, J.

—An indictment was filed in the circuit court for Taylor county, charging that Jno. McDonald, Tom Jackson, George Cooper and Simon Sykes on November 13th, 1906, in Taylor county, Florida, from a premeditated design to effect the death of Ed. Carrington, did with a loaded pistol held and discharged by Jno. McDonald, murder said Ed Carrington; and that the said Tom Jackson, George Cooper and Simon Sykes were then and there present unlawfully, and from a premeditated design to effect the death of the said Ed. Carrington aiding, abetting, comforting, procuring, hiring, encouraging and commanding the said Jno. McDonald, the murderer aforesaid in manner and form aforesaid to do and commit, so the said Jno. McDonald, Tom Jackson, George Cooper and Simon Sykes did commit the crime of murder in the first degree contrary to the laws of Florida.

Pleas of not guilty were entered by the defendants. The jury returned the following verdict: “We, the jury, find John McDonald guilty of murder in the first degree, and George Cooper and Simon Sykes and Tom Jackson, guilty- of murder in the second degree. So ■say we all. J. D. Renfroe, foreman.”

George Cooper, Simon Sykes and Tom Jackson were sentenced to life imprisonment in the state prison, and John McDonald was sentenced to be hanged. The four defendants took a joint writ of error.

It is contended that “John” McDonald, who is found guilty of murder in the first degree is not charged with any offense, since the indictment charges “Jno.” McDonald with the murder. There is no merit in this point. That “Jno.” is generally and correctly used as an abbreviation, abridgement or contraction of the Christian proper name “John” is shown by the standard authors and writers. See Webster’s International Dictionary 1921; Fallow’s Synonyms, abbreviations and contractions 498; Standard Dictionary of the English Language, abbreviations and contractions, page 2312.

An abbreviation of a name does not constitute legal error where its use for the full name has been so general and constant that the meaning of the abbreviation is universally understood and is a matter of general knowledge. Courts will take judicial notice of the usual abbreviations of Christian names in common use. See 1 Enc. Pl. & Pr. 42, and authorities cited. Walter v. State, 105 Ind. 589, 5 N. E. Rep. 735; Stephen v. State, 11 Ga. 225; Fenton v. Perkins, 3 Mo. 106; Wilkerson v. State, 13 Mo. 91; Kemp v. McCormick, 1 Mont. 420; Johnson v. State, 51 Fla. 44, 40 South. Rep. 678; Thomas v. State, 49 Fla. 123, 38 South. Rep. 516.

When as in this case a person is indicted by the name of “Jno.” McDonald for murder in the first degree and the identity of the person charged who pleads not guilty is not questioned and in his motion for new trial when the objection is firsfc made the defendant uses upon the record the names Jno. McDonald and John McDonald indifferently as his own, if the verdict and judgment convict him as “John” McDonald, there is no error, even though the verdict does not'refer to the' person as “the defendant” or otherwise connect the name with the prosecution, except to find “John McDonald guilty of murder in the first degree.”

The verdict is responsive to the charge, and taken in connection with the record is sufficient to sustain the sentences imposed upon the defendants.

There is a distinct finding of guilty of a specified crime as to each of the persons charged in the indictment by their several names, and it was not essential that the words “the defendants’" be used in the verdict.

While it is the duty of the court to charge the jury upon the law applicable to the evidence the mere failure to charge the jury upon the law applicable to the evidence in one or more of its aspects, or as applicable to some portion of the evidence, will not in general be error in the absence of a request to so charge and an exception to a refusal to so charge. See Johnson v. State, 53 Fla. 45, 43 South. Rep. 779; Lindsey v. State, 53 Fla. 56, 43 South. Rep. 87.

The court did not charge upon murder in the third degree, but the evidence does not call for such a charge and there was no request for an instruction upon murder in the third degree. Carr v. State, 45 Fla. 11, 34 South. Rep. 892.

The charges of the court have reference to and should be considered in connection with the evidence in the case; and where, as in this case, the venue is clearly proven as laid, it is not error to merely fail to refer to the venue in the charge to the jury, where no request for a charge upon the venue is made.

In a criminal prosecution where a premeditated design is' an essential element of the offense, it is not ordinarily, in the absence of a proper request, incumbent upon the court to give to the jury a definition of the phrase “a premeditated design.” It is presumed that the jury understand the meaning of “a premeditated design.” Lovett v. State, 30 Fla. 142, 11 South. Rep. 550, 17 L. R. A. 705. See also Lewis v. State, decided at this term.

The court charged the jury, that before a conviction could be had the state must prove the guilt of the accused, and that if from the evidence, a reasonable doubt rests upon their minds of the guilt of the defendants, or any one of them, the jury should acquit them, or either of them to whom such reasonable doubt applies. No other charges were requested as to the presumption of innocence of . the defendants, and they cannot complain of an entire failure of the court to charge on this point in view of the charge given as above stated.

In this case the killing was not controverted, and the criticism that one of the charges assumed that a homicide had been committed and required the finding of a verdict for some degree of homicide is not well taken, since the charge distinctly required a finding by the jury, whether the defendants, or any of them participated in committing a homicide as charged, or were justifiable or excusable in their acts under the law as defined by the court. The evidence justified the charges given by the court.

The defendants were all Charged with murder in the first degree, and it was within the province of the jury to find one or more of them guilty of murdér >in the second degree. Where one is charged with the act of unlawful killing from a premeditated design to effect the death of the person killed and the others are charged with being present, aiding and abetting in such unlawful killing from such premeditated design, all are charged with murder in the first degree.

There is evidence to sustain the verdict and it will not be disturbed.

The judgment is affirmed.

Shackleford, C. J., and Cockrell, J., concur;

Taylor, Hocker and Parkhill, JJ., concur in the opinion.