Carr v. State

¶1Appellant was convicted by a jury in the Criminal Court of Record in Dade County of abortion under § 797.01, Fla.Stat., F.S. A., and sentenced to imprisonment for three years. On this appeal, in addition to a question relating to the admissibility of certain evidence which we find is without merit, it is contended on behalf of the appellant that prejudicial error resulted when the trial judge, during the trial and in the presence of the jury, referred to the defendant’s action as being an - abortion, and stated that an abortion had occurred.

¶2The jury was informed by the prosecutor at the outset, and by the trial judge in his charge at the end of the trial, that the defendant was charged with and being tried for abortion. During the trial, on more than one occasion, statements made by the trial judge included a reference to “abortion”.1 In gauging the effect on the jury of those statements by the judge, it should be noted that the very happening of the occurrence was in dispute, and that the evidence on the issues being tried was in conflict. By thus referring to “abortion”, without qualifying the term, such as by saying the alleged abortion or the supposed or the claimed abortion, the trial judge’s remarks were such as to show or imply he felt the alleged abortion had occurred, and that what had occurred was an abortion. For the reasons set out in the authorities cited below, we conclude that those statements by the court amounted to fundamental error depriving the defendant of a fair trial, and that the interest of justice will best be served by remanding the cause for new trial. See Hamilton v. State, Fla.App.1959, 109 So.2d 422; Kellum v. State, Fla.App.1958, 104 So.2d 99; Raulerson v. State, Fla. 1959, 102 So.2d 281; Lester v. State, 37 Fla. 382, 20 So. 232. Although not objected to at trial, error of this nature is properly reviewable under Rule 6.16a, F.A.R., 31 F.S.A. Ap-pellee’s contention that the word “abortion” is in use to denote a lawful as well as an unlawful termination of pregnancy, if correct, is without merit here, because the term was used in the case repeatedly with reference to the offense involved,2 and *30there is no way to know that the jurors did not so regard it as used by the judge. Hamilton v. State, supra. Accordingly, the judgment is reversed and the cause is remanded for new trial.