Frank Farley, Plaintiff in Error, v. The State of Florida, Defendant in Error, 88 Fla. 159

West, J. Plaintiff in Error, Frank Farley, was charged by indictment of a grand jury of Hillsborough County with murder. He was found guilty of murder in the first degree but there was a recommendation to the mercy of the court. To review the judgment imposing sentence Writ of Error was taken from this court. The assigned errors upon which reversal of the judgment is sought are presented in the brief in five groups. The first contention is that the verdict is not supported by the evidence. That the accused shot and killed the deceased is admitted.

Whether the circumstances of the killing are such as to justify a finding of murder in the first degree is disputed. If the record contain competent evidence upon which a finding of murder in the first degree can be based this court will not disturb the judgment. To do so would be to invade the province of the jury. The defendant was armed with a pistol. There was an altercation between them. Defendant threatened to kill the deceased, fired at him twice, inflicting a wound from the effect of which he died.

There is not such absence of proof of essential elements of the crime alleged as to require a reversal upon this ground. The second contention is that there was error in rulings of the trial court admitting1' or rejecting evidence. The rulings complained of were made during cross-examination by the state attorney of a witness called and who testified in behalf of defendant. There was an effort to impeach this witness by showing prior inconsistent statements made by him. The record discloses an apparent purpose of the trial court to see to it that every right of the defendant was protected.

And from an examination of the whole of the record of this proceeeding it is obvious that even if technical errors were committed, defendant was deprived of no substantial right, and assignments under this group present no reversible error. Joyner v. State, 85 Fla. 384, 96 South. Rep. 155; Breen v. State, 84 Fla. 518, 94 South. Rep. 383. The assignments predicated upon alleged misconduct of the state attorney challenge as prejudicial and inaccurate statements of the state attorney in his argument to the jury.

With respect to one in which the success in previous cases of opposing counsel was referred to the jury were instructed to pay no attention. By others it is contended that in the argument of the state attorney the evidence is not. accurately stated. The jury presumably were intelligent and capable of determining what the evidence was. If it were misquoted they would be likely to detect it.

The rule is that material statements of counsel outside the evidence which are likely to injure the defendant are cause for reversal, but the failure of the trial court to check counsel cannot be deemed such an abuse of discretion as to require a'reversal where statements are of a general character and not likely to cause prejudice against the defendant in the minds of a jury of fair intelligence. Landrum v. State, 79 Fla. 189, 84 South. Rep. 535. While not a literal quotation, the

interpretation placed upon the evidence in the argument was not such a deviation as to amount to prejudicial error. The assignment based upon an adverse ruling upon the motion for a new trial presents no question not contained in other assignments and already considered. Even if the amendment to the motion upon the ground of newly discovered evidence be considered the showing is not such, under the settled doctrine in such cases in this court, as to require a reversal of the judgment. Howard v. State, 36 Fla. 21, 17 South. Rep. 84; Kirkland v. State, 70 Fla. 584, 70 South. Rep. 592; Herndon v.

State, 73 Fla. 451, 74 South. Rep. 511. The judgment is affirmed. Whitfield, P. J., and Terrell, J., concur. Taylor, C. J., and Ellis, J., concur in the opinion.