This case is here on writ of error to a judgment and sentence entered against James Patrick by the Circuit Court of Brevard County, Florida. William Patrick Driscoll and James Patrick were informed against on a charge of armed robbery. When the defendants were arraigned William Patrick Driscoll entered a plea of guilty and James Patrick filed a plea of not guilty, was tried, convicted and sentenced to serve a period of three years in the State Penitentiary. He has perfected his appeal to this Court and assigned as error charges or instructions given by the trial court.
An examination of the transcript reveals that counsel for plaintiff in error failed or otherwise omitted to take exceptions to the charges or instructions assigned as error in this Court at the time same were given by the trial court. Likewise, an examination of the motion for a new trial fails to show that either of the charges or instructions assigned as error in this Court was incorporated in or made a ground or grounds of the motion for a new trial. This Court has held that it is necessary to obtain an exception or exceptions to charges or instructions before they can be considered in this Court. See Williams v. State, 32 Fla. 251, 13 So. 429; Bynum v. State, 46 Fla. 142,35 So. 65; Teddleton v. State, 131 Fla. 106, 178 So. 909.
It is settled law in Florida that in passing upon a single charge or instruction when assigned as error the same should be considered in connection with all other instructions and charges bearing upon the same subject, and if, when so considered, the law appears to have been fairly presented to the jury, the assignment must fail, unless *Page 855 under all the peculiar circumstances of the case the court is of the opinion that such instructions or charges were calculated to confuse, mislead or prejudice the jury. See Lewis v. State,55 Fla. 54, 45 So. 998.
The first instruction assigned as error is, viz.:
"If you believe from the evidence in this case, and beyond all reasonable doubt, that William Patrick Driscoll, on the 31st day of January, A.D. 1938, or at any other time within two years next prior to the filing of the Information in this case, which was the 5th day of February, A.D. 1938, in the County of Brevard and State of Florida, in and upon one Anna Mitchell an assault did then and there feloniously, and her, the said Anna Mitchell, did then and there put in bodily danger and fear of her life, and then and there thirty-five dollars, lawful currency of the United States, of the value of thirty-five dollars, of the money, property, goods and chattels of the said Anna Mitchell, from the person and custody and against the will of the said Anna Mitchell, by force and violence and by putting her, the said Anna Mitchell, in fear, feloniously did rob, take, steal and carry away, the said William Patrick Driscoll having then and there the intent, if then and there resisted by the said Anna Mitchell, her, the said Anna Mitchell, then and there to kill or maim, and should further find, beyond all reasonable doubt, that the defendant, James Patrick, of the County of Brevard and State of Florida, at the time of the commission of the felony aforesaid was then and there unlawfully present, and did unlawfully aid, counsel and otherwise procure the said William Patrick Driscoll to do and commit the felony aforesaid, in the manner and form aforesaid, it would be your duty to find the defendant, James Patrick, guilty as charged in this Information; if you do not so believe, *Page 856 or if you have a reasonable doubt about it, you should find the defendant not guilty."
The second charge assigned as error is, viz.:
"6. In connection with the elements in the charge of putting in fear or danger, I charge you: The force by means of which robbery is committed may be divided into two classes — actual force and constructive force. Under actual force is included all violence inflicted directly on the person robbed. Under constructive force is meant demonstrations of force by means of which the person robbed is put in fear sufficient to suspend free exercise of the will to prevent resistance to the taking.
"6-a. The intimidation or putting in fear is that constructive violence which constitutes robbery. It means, in dealing in cases of robbery, not actual and directed to such as is exerted upon the person robbed by operation upon his fears. No matter how slight the cause of creating the fear may be, nor by what other circumstances the taking may be accomplished, if the person be attended with such circumstances of terror threatening by word or gesture, as in common experience are likely to create an apprehension of danger, and to induce a man to part with the property for the safety of his persons, he is said to be put in fear."
The third instruction assigned as error is, viz.:
"5. In connection with the charge against the defendant, James Patrick, now on trial as a principal in the second degree, I charge you, that all persons are principals who are guilty of acting together in the commission of an offense, when the offense is actually committed by one or more persons, while others are present and knowing and having an unlawful intent to aid by acts of encouragement, by word or gesture, those actually engaged in the commission *Page 857 of the unlawful act, such person so present and aiding or encouraging are principals in the second degree."
Applying the rule in Lewis v. State, supra, to the charge first assigned as error, we find that the court in other portions of the instructions recited the charge contained in the information, when the following language was used: "* * * and against the will of the said Anna Mitchell, by force and violence and by her, the said Anna Mitchell, in fear, feloniously did rob, take, steal and carry away, the said William Patrick Driscoll, being then and there armed with a dangerous weapon, to-wit, a pistol." And another section of the charge is, viz.: "As I have stated to you, it is necessary for the State to prove to your satisfaction and beyond any reasonable doubt, each and every of the material elements contained in the offense charged before you should be warranted in finding the defendant guilty." This assignment is without merit.
We have examined the second and third charges assigned as error and briefed and argued at the bar of this Court, but when the rule stated in Lewis v. State, supra, is applied to each of these assignments of error, or considering the entire charge as differentiated from isolated portions or single instructions assigned as error, the conclusion is irresistible that the said assignments and each of them, are without merit.
The judgment appealed from is hereby affirmed.
TERRELL, C.J., and WHITFIELD, BUFORD, CHAPMAN, and THOMAS, J.J., concur.
BROWN, J., concurs in part and dissents in part.