March 31, 1970.
Appeal from the Criminal Court of Record for Dade County, Carling Stedman, J.
Hughlan Long, Public Defender, and Alan S. Becker, Asst. Public Defender, for appellant.
Earl Faircloth, Atty. Gen., and Melvin Grossman, Asst. Atty. Gen., for appellee.
Before PEARSON, C.J., and CHARLES CARROLL and SWANN, JJ.
This appeal is by the defendant below from a judgment of conviction of aggravated assault, rendered in a non-jury trial on July 11, 1969.
The information alleged an assault was committed on December 22, 1968, on a named person, with a deadly weapon, a revolver. The state presented evidence that on the night of the date alleged the defendant entered the victim's store and fired three shots at him; that the defendant then departed, and after an interval of time, the length of which was not disclosed in the record, returned and fired another shot at the victim.
The appellant contends the evidence disclosed two separate offenses, and that the trial court erred in denying his motion to strike such testimony or to require the state to elect one of the offenses upon which to rely and proceed. The trial court was of the view that the evidence sufficiently disclosed a single transaction. On considering the record, and the absence of a showing as to the interval which transpired between the firing of the first three shots and the firing of the fourth shot, we agree with the conclusion reached by the able trial judge, and affirm.
There was no multifariousness or duplicity in the information, which charged a single offense. In the absence of any showing of a material or prolonged period of time between the first salvo and the fourth shot fired at the victim, there would appear no reason to consider that they represented two separate assaults than there would be to regard the first three shots at the victim as constituting three separate aggravated assaults upon him.