I concur in the judgment of affirmance, because in view of the testimony, I am of the opinion that such errors as were committed were harmless errors and did not result in *Page 858 any miscarriage of justice. The evidence was amply sufficient to sustain the verdict and judgment.
The first instruction to the jury, which is assigned as error, and which is quoted in full in the majority opinion, is not quite clear. If it were based upon the theory that James Patrick was a principal in the second degree, I think the charge would have embraced the elements of participation by James Patrick in the felonious design charged against the principal offender, Driscoll, or at least, that the offense alleged to have been committed must have been within the compass of the original intention of both defendants. This thought might be implied from the language of the charge, but I think that it would have been better to have clearly stated it. See Savage v. State, 18 Fla. 909; Henry v. State, 81 Fla. 763, 89 So. 136; Roe v. State,96 Fla. 723, 729, 119 So. 118; Leavine v. State, 109 Fla. 447, 465,147 So. 897; Smith v. State, 71 Fla. 97, 70 So. 943. It is possible that a person might innocently do some act which would aid another to commit a felony, and hence the use of the word "aid" does not necessarily imply a guilty knowledge of the felonious intent of the principal.
The charge, also, to some extent confuses a principal in the second degree with an accessory before the fact.
It is true that our statute provides that whoever aids in the commission of a felony shall be punished in the same manner prescribed for the punishment for the principal felon. The same provision is made with regard to persons who are accessories before the fact to the commission of a felony by "counseling, hiring, or otherwise procuring" such felony to be committed. Section 7110 C.G.L. And the following section, 7111 C.G.L., provides that: "Whoever counsels, hires or otherwise procures a felony to be committed, may be indicted and convicted as an accessory *Page 859 before the fact, either with the principal felon or after his conviction," etc.
The definition of accessories before and after the fact and principals in the second degree is well and briefly stated in the first headnote to the case of Albritton v. State, 32 Fla. 358,13 So. 955. This headnote, which is fully sustained by the language of the well considered opinion, reads as follows:
"An accessory before the fact is one, who though absent at the time of the commission of a felony, does nevertheless procure, counsel, command or abet another to commit such felony. An accessory after the fact is one who, with knowledge that a felony has been committed by another, aids, relieves, comforts or assists the felon, whether he be a principal or an accessory before the fact. A principal in the second degree is one who is present aiding and abetting at the commission of a felony."
This definition has been frequently followed and quoted by this Court. It is based on sound common law principles and should not lightly be departed from. Thus in the case of Neumann v. State,116 Fla. 98, 156 So. 237, this Court, speaking through the then Chief Justice DAVIS, had this to say:
"There is under the common law and under our statute a clear and marked distinction between a principal in the second degree and an accessory before the fact. The effect of Section 7110 C.G.L., 5008 C.G.L., is not to do away with the common law distinction between principals in the second degree and accessories before the fact, but merely to provide for the punishment of each of them in like manner as the principal felon is provided to be punished.
"A person charged with a felony, whether as principle in the first or second degree or as accessory before or after the fact, is entitled to have the charge so stated against *Page 860 him in an indictment or information as to protect him after conviction or acquittal from substantial danger of a new prosecution for the same offense, and he is likewise entitled to have the charge so stated against him that it will not appear so vague, indistinct and indefinite as to mislead him and embarrass him in the preparation of his defense to the charge as stated. See Section 8369 C.G.L., 60 64 R.G.S. * * *
"An accessory before the fact is one who is absent at the time of the commission of a felony, but who has beforehand counseled, hired or otherwise procured the perpetrator to commit it as defined in Section 7119 C.G.L., 5008 R.G.S. A principal in the second degree is one who `aids in the commission of a felony' as referred to in Section 7110 C.G.L., supra, by being present, aiding and abetting the commission of the felony at the time it is perpetrated. The latter's presence at the time of commission of the crime may be actual or constructive. Kauz v. State,98 Fla. 687, 124 Sou. Rep. 177; Albritton v. State, 32 Fla. 358,13 Sou. Rep. 955."
As stated in the majority opinion, the transcript fails to show that plaintiff in error made any objections or took any exceptions to the instructions of the court at the time they were given, nor did he raise any question in his motion for a new trial as to the correctness of the charges here assigned as error. Also, as stated in the majority opinion, we have held in numerous cases in the past that under these circumstances this Court will not consider assignments of error based on alleged errors in charges of the trial court. But I am of the opinion that this rule has to some extent been changed by the adoption of Rule 74 of the Common Law Rules adopted and promulgated by this Court in April of 1936, effective October 1, 1936, *Page 861 which is applicable to all actions at law, including criminal cases, and which Rule 74 reads in part as follows:
"(2) Upon all appellate proceedings in actions at law the appellate court shall review, without exception having been taken in the trial court, any question of law involved in any adverse ruling, order, instruction or thing whatsoever said or done at the trial or prior thereto or after the verdict, which thing wassaid or done after objection made and considered by the trialcourt, and which affected the substantial rights of the party complaining and which is assigned as error and thereupon the appellate court may reverse, affirm or modify the judgment or order appeal from, and may set aside, affirm, or modify any and all the proceedings subsequent to or dependent upon such judgment or order, and may, if proper, order a new trial.
"(b) It shall not be necessary for a party to object to thegiving of any charge by the court or to the refusal to give anycharge requested in writing nor need the bill of exceptions state the objections reserved thereto." (Italics supplied.)
It will be observed that paragraph (a) of this Rule would indicate that it would be incumbent upon the plaintiff in error to show that he had objected to the ruling of the court, whatever it might relate to, and if the record showed that objection was made and considered by the trial court, the making of an exception thereto would be unnecessary, and the ruling might be assigned as error. But paragraph (b) indicates that in order to take advantage of an error of a trial court in the giving orrefusal of charges, requested in writing, it is not necessary for a party to object thereto, nor need the bill of exceptions state such objections. However, this paragraph refers to the giving or refusal of charges requested in writing. When so construed there is a field of operation for both *Page 862 paragraphs of the rule. Thus under paragraph (a), a party cannot assign as error the giving or refusal of an instruction which wasnot requested in writing, such as portions of the Court's oral charges, unless he made objection thereto and the same was considered by the trial court. If this were done, that is, if the objection to the oral charge was made and denied by the trial court, this court will review such ruling even though no exception was taken in the trial court. The same observation would likewise apply to other adverse rulings as set out in paragraph (a). It might be noted in this connection that Sections 4365 and 4367 C.G.L. inclusive read as follows:
"4365 (2698) Instructions to juries. — If either of the parties, or their attorneys, present to the judge instructions in writing on any point of law arising on the trial, it shall be the duty of the judge to declare in writing to the jury his ruling thereupon as presented, and pronounce the same to the jury as given or refused."
"4366 (2699) To be signed and filed. — Said instructions, as well those given as those denied, shall be signed by the said judge, and be by him filed in the case immediately after delivery or refusal, and form a part of the record in the case. (Id. Sec. 3)"
"4367 (2700) Portion of charge embodied in motion for new trial considered as excepted to. — Either party, after verdict rendered, may embody in a motion for a new trial any portion of the charge of the court which he may deem erroneous, which shall be taken as an exception to said charge."
It not appearing that the instructions complained of were presented to the judge in writing, my view is that under common law Rule 74 it was incumbent upon plaintiff in error to make objections to the giving of the charges complained of at the time, so that the court might have *Page 863 had an opportunity to correct the same if considered necessary, and that the record in the case should have been made to show such objections and the court's ruling thereon. The charges assigned as error here were evidently portions of the court's oral charge to the jury to which no objection or exception was made or taken, nor were any of such charges complained of in the motion for new trial. Therefore it is not incumbent upon this Court to consider the assignments of error based thereon, unless the Court should be convinced that some gross error was committed which was prejudicial to the defendant's case, and of such a serious nature that this Court would consider the same without any objection having been made of any sort and without any assignment of error. This case does not come within the exception to the general rule. When the charges are considered in connection with the evidence in the case no serious or reversible error appears.
I concur with the majority that the judgment should be affirmed.