WILDER MORRIS BLITCH, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant Blitch was charged with mayhem for cutting and mutilating the victim's nose with a broken porcelain beer mug. The trial court reduced the charge to aggravated assault, and defendant was convicted. On appeal, Blitch challenged whether a mayhem charge without alleging a deadly weapon can include the lesser offense of aggravated assault, and whether the beer mug was properly admitted into evidence.
A charge of mayhem does include the lesser offense of aggravated assault when the mayhem charge alleges use of a deadly weapon, and the trial judge properly found the broken porcelain beer mug was a deadly weapon as a factual matter. The beer mug and handle were properly admitted into evidence based on the victim's and police officer's testimony establishing sufficient continuity of possession.
“To include the lesser offense of aggravated assault, a charge must allege that the assault was made with a deadly weapon.”
Establishes the legal requirement that mayhem charges must allege a deadly weapon to include the lesser offense of aggravated assault.
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Join FLexlaw to unlock all legal intelligenceThe defendant allegedly cut, slit, and mutilated the nose of John Whitney Nixon, Jr. with a broken porcelain beer mug during an altercation in the bac…
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An information was filed against the defendant for committing the felony of mayhem. The information recites that “said defendant did cut, slit and mutilate the nose of one John Whitney Nixon, Jr., with a broken porcelain beer mug.” The defendant entered a plea of not guilty and waived jury trial.
At the conclusion of the state’s case in chief, the trial court reduced the charge to aggravated assault on defendant’s motion for a directed verdict. Defendant was found guilty of aggravated assault and sentenced to eighteen months in the state penitentiary.
The defendant contends that a charge of mayhem that fails to allege the use of a deadly weapon does not include the lesser offense of aggravated assault. Defendant also contends that the beer mug should not have been admitted into evidence without the establishment of an unbroken chain of possession from the time of the alleged assault or recovery of the beer mug to the time of its presentation in court.
To include the lesser offense of aggravated assault, a charge must allege that the assault was made with a deadly weapon. Lindsey v. State, 53 Fla. 56, 43 So. 87 (1907). Our Supreme Court has defined a deadly weapon as “one likely to produce death or great bodily injury”, and stated that “[wjhether or not the weapon involved is to be classed as ‘deadly’ is a factual question to be resolved by the jury under appropriate instructions.” Goswick v. State, Fla.1962, 143 So.2d 817, 820.
The charge of mayhem alleged that the injury was caused by a broken porcelain beer mug. The trial judge, as trier of facts, found that the beer mug was a deadly weapon. Therefore, the charge of mayhem did include the lesser offense of aggravated assault. •
The victim testified that during the altercation in the back seat of his car with the defendant he saw something white up in the air' which was followed by a sharp blow on the side of his head. The victim . stated that the sharp blow was caused by something a lot harder than a fist, “like it could have been the beer mug hitting the side of my face, and then the handle breaking and cutting my nose”. The victim drove home and found the body of the beer mug without its handle in his car a short time after the incident. Approximately twenty minutes after the incident he returned to the scene of the incident and found the handle of the mug. A police officer testified that the victim gave him the beer mug and handle and that he retained custody of them until they were presented to the court.
' The testimony of the victim and of the police officer sufficiently identified and established continuity of possession to admit the beer mug and handle into evidence.
Therefore, the judgment appealed is affirmed.
Affirmed.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Goswick v. State, 143 So. 2d 817 (Fla. 1962)
- Pleas Lindsey v. State, 53 Fla. 56 (Fla. 1907)