Bond v. State
21 Fla. 738
Fla.
1886
Check Treatment
Mr. Justice Raney

delivered the opinion of the court:

The errors assigned in this case are based upon the refusal of the Circuit Judge to permit the plaintiff in error to prove by witnesses that Stephens, the deceased, had made threats against the former’s life, “ within three weeks,” and a “ short while,” or “ short time ” before the killing ; and a refusal to admit proof that Stephens bore the reputation of a violent, quarrelsome and dangerous man, in the community in which he lived.

Where previous threats have been made on the day, and near the time of the killing, they have been held admissible as parts of the res gestee, though not communicated to the defendant before the fatal encounter. Likewise, upon the same principle, they have been admitted when made the day previous and continued uninterruptedly down to the homicide. Pittman vs. State, 22 Ark., 354 ; State vs. Keene, 50 Mo., 357. The principle of their admission in such cases is, that they are parts of the transaction resulting finally in the killing. Bp. Cr. Pro., Vol. I, §§1083, 1087 : Vol. II, §623. Again, it is held that in a trial for a homicide where the question whether the deceased or the prisoner commenced the encounter which resulted in death is in any manner of doubt, it is competent to prove threats of violence against the prisoner, made by the deceased, though not brought to the knowledge of the prisoner. *752Wiggins vs. People, 93 U. S., 465 ; Keener vs. State, 18 Ga., 194; Stokes vs. People, 53 N. Y., 174 ; Campbell vs. People, 16 Ill., 18; Holler vs. State, 37 Ind., 37 ; People vs. Arnold, 15 Cal., 476 ; People vs. Scroggins, 37 Cal., 676. They will, however, when not admissible on the above grounds, be excluded, though known to the defendant, unless there are circumstances which might reasonably cause him to believe that the deceased, at the time of the killing, had a purpose to carry them out. It is not necessary that the deceased should really have had such purpose. Colton vs. State, 31 Miss., 504 ; Gladden vs. State, 12 Fla., 563 ; 16 Ill., 17. In the case of Holly vs. State, 55 Miss., 424, it was held that when a party with a deadly weapon assaults another, who has done no act and made no motion, gesture or other demonstration indicating any present violeut purpose toward the assailant, proof offered by the latter of violence threatened against him by the party assailed will not be admitted; and that this is true, though the threats extended through several days, and down to the morning of the day in the evening of which the attack was made, and though the party assailed was turbulent and dangerous when drunk, it appearing he was sober at the time in question. Mr. Bishop says, (2 Or. Pro., §620,) that if the threatened person, in violation of the right of self defence, kills another who has made no overt demonstration, he cannot lay before the jury the known threats upon which he thus unlawfully acted, and that under no circumstances can he introduce the threats, except where other or accompanying proofs and contentions render them admissible on special grounds. In the State vs. Alexander, 66 Mo., 148, it is held that upon a trial for murder, evidence of threats made by deceased against the defendant is not admissible to justify the killing. but is admissible as conducing to show that an assault *753was first made by the deceased towards the defendant, where there is other evidence tending to prove such assault; and when there is none, such evidence is not admissible for any purpose. No exact definition of an overt act can probably be given, but the term certainly embraces everything which could reasonably be construed to evince a present design to make an assault or carry out the threats, and as said in the Mississippi ease, “ acts which seem but trifles when viewed alone, when considered with preceding facts may become fraught with deadly meaning.”

In People vs. Scroggins, 37 Cal., 676, it is held that threats made by the deceased or injured party, if known to the defendant at or prior to the transactions, are admitted for the purpose of showing that the circumstances of the offense were such as to excite the reasonable fears of the defendant that his life was in danger, or that he was in danger of serious bodily injury, and thus justify his act. Judge Crockett, in speaking for a majority of the court, in this case, says: “ A person, whose life has been threatened by another, whom he knows, or has reason to believe, has armed himself with a deadly weapon for the avowed purpose of taking his life, or inflicting great personal injury upon him, may reasonably infer, when a hostile meeting occurs, that his adversary intends to carry his threats into execution. The previous threats alone, however, unless coupled at the time with an apparent design then and there to carry them into effect, will not justify a deadly assault by the other party. There must be such a demonstration of an immediate intention to execute the threat as to induce a reasonable belief that the party threatened will lose his life or suffer serious bodily injury, unless he immediately defends himself against the attack of his adversary. The-philosophy of the law on this point is sufficiently plain. A *754previous threat alone, and unaccompanied by any immediate demonstration oí force at the time of the rencounter, will not justify or excuse an assault, because it may be that the party making the threat has relented or abandoned his purpose, or his courage may have failed, or the threat may have been only idle gasconade, without any purpose to execute it.”

The refusal to admit the testimony in this case was upon the ground that that there was no proof of any overt act upon the part of the deceased. Had the shooting of Stephens taken place just as he, young Dyass and Hale arose from their sitting posture, or Bond’s coming up near or opposite to them, the contention would possibly be that such rising was an overt act, but it is clear that it was not so regarded by Bond. According to one witness, Bond, after this, walked by them about eight paces, and then stopped and turned round facing them, and had stood in this position about two minutes when Stephens and Byass started off “ quartering ” from him and went towards the house, Hale going towards Bond and getting close to him and saying something, to which Bond replied before he threw his gun to his face and shot. Messer says Bond walked up opposite to them and the two started to the house, and Hale towards Bond, who threw his gun in that direction and shot Stephens. ¥m. Byass, Jr., testifies that Bond came near them and stopped, and soon after Stephens and himself and Hale got up, and Stephens and he started in the direction of the house, and Hale towards Boud, and just as witness and Stephens were passing Bond, a little “quartering” from him, witness heard the report of a gun and Stephens fell by his side. Joseph May testified that Bond went on to where Stephens and his companions were sitting down, and stopped, and stood a “ short little time ” before Stephens and Byass got up. When they got up they started to *755the house, when Bond shot. Crews says that Hale had walked up to Bond and said something to him and that Bond spoke back, and then he threw his gun around Hale and Stephens fell.

It is clear that Stephens was not walking towards Bond when he was shot. He was walking away from him, and though not directly, yet “ quartering,” and was, according to the testimony, ten or twelve yards from him. The wound was in the back; “just above the left hip,” according to oúe witness, and “just to the left of the spinal column,” according to I)r. Mitchell. There was nothing in his position at the time of being shot, and had been nothing in his action at any time, that evinced any intention of present violence towards Bond, and there was certainly nothing of that appearance which Bond or any one else could have construed with any reason - into an indication of a present intent to carry out any previous threats of violence. Bond was armed with a double-barrel shot gun ; and to all appearance, Stephens’ action, if Bond’s presence had any effect upon them, was to get away from him, and to do this he was walking off.

According to one witness, Stephens, just as Bond threw his gun to his face, said, “ Good, please don’t shoot me,” when Bond fired. Another State witness says, “ just before Bond shot Stephens I saw Stephens throw back his hand, could not see whether it was open or not; I was standing quartering from them when the shooting occurred; I do not think Stephens had any weapon in his hand when he threw it back; he did not turn around, he only looked back;” “ he threw his hand back in the direction of Bond just before the shooting.”

If these witnesses are correct in their statements, then Stephens, as Bond throws his gun to his face, turned his head towards Bond enough to see him, but, as the wound *756indicates, did not also turn his body around. He could not have been in a hostile attitude, and certainly his plea for his life does not betoken that he was. The throwing back his hand was evidently contemporaneous with the supplication not to be shot, and there is nothing to show that either preceded Bond’s throwing his gun to his face.' It is almost impossible to imagine that it was anything but a gesture accompanying such supplication, and there is no evidence that there was in it anything of a hostile nature. Both of these witnesses testify that Stephens was going quartering-from Bond when he shot. The fact that the pistol was found in Stephens’ pocket precludes the assumption that Stephens could have had it in his hand, and there is no testimony of any movement indicating an attempt or purpose to take it from his pocket.

We see nothing which justifies us in holding that the Circuit Judge erred in refusing to admit the testimony as to the threats. There is no doubt as to the prisoner having commenced the hostilities, or that they were all on his side, and there is no hostile act of the deceased with which any previous threat of his can be introduced as part of the-res gestee or to explain.

II. The evidence offered as to the character of the de•ceased was, we think, also properly excluded. In trials for murder the reputation of the deceased for violence, turbulence and quarrelsomeness is not admissible as a general rule, as these characteristics do not of themselves justify the killing, or excuse or mitigate the offence of the homicide.

In Stevens vs. State, 1 Tex. Ct. of Appeals, 592, it is said: “ As a general rule, evidence as to the character of the person injured is not admissible, the character being no part of the res gestae. In trials for murder the reputation of the deceased may be given in evidence when the circumstances of the case raise a doubt in regard to *757the question whether the prisoner acted in self defense. The rule is well settled that the reputation of the deceased •cannot be given in evidence unless at least the circumstances of the case raise a doubt in regard to whether the prisoner acted in self defense. It is no excuse for a murder that a person murdered is a bad man, but it has been held that the reputation of the deceased may be given in evidence to show that the defendant was justified in believing himself in danger of losing his life or sustaining great bodily inj'ury from the deceased.” In Quesenbury vs. State, 3 Stewart & Porter, 308, it was held that on a trial for murder evidence of the good or bad character of the deceased is not admissible, except in cases where the killing is attended by circumstances to create a doubt of its character; as where it appears that the slayer has been actuated in the commission of the offense by the principle of self defense, or by some other fact that would excuse the offense; and that the rejection of evidence of bad character of the slain person is not error where the record does not show a state of facts to warrant its admission.” If, says the court, the killing took place under circumstances that could afford the slayer no reasonable grounds to believe himself in peril he could derive no advantage from the general character of the deceased for turbulence and revenge. But if the- circumstances were such as to leave any doubt whether he had not been more actuated by the principle of seif preservation than that of malice, it would be proper to admit any testimony calculated to illustrate to the jury the motive by which he had been actuated. Ibid, 316. In Franklin vs. State, 29 Ala., 14, it is held admissible when it qualifies, explains and gives point and meaning to the deceased’s conduct and tends to produce in the mind of the slayer a reasonable belief of .imminent danger ; and that there are cases also in which *758it may be looked to in determining the amount of provocation, and thus fixing the degree of homicide. In this case the prisoner and deceased were brothers, and worked together in a blacksmith shop. The deceased went to the prisoner’s house with a loaded gun, late in the evening, and near the door of his house used reproachful language and angry words for some time, but did not use any language of menace, or indicating an intention, either present or prospective, to perpetrate violence upon the prisoner. The deceased afterwards went into the house where the prisoner was lying upon the bed, and immediately after-wards the latter said to the former : “You have come here with your arms and I have nothing to defend myself.” The deceased then put his gun on the bed where the prisoner was lying and turned and walked off to a table about ten feet away and turned to sit down on the table. At the instant the deceased sat down, the prisoner, who had taken up the gun as the former walked off, shot the deceased. The.evidence conduced to show that the deceased earned the gun for the purpose of shooting birds, and it does not appear that he had other arms. The testimony offered, as to the character of the deceased, “ as a turbulent and dangerous man,” was held inadmissible for either purpose. “ There was not,” say the court, in commenting on this testimony, “ a word -spoken, not an act done, which illustrated by the character of the deceased, and construed in the light of that character, could tend to produce a reasonable belief of imminent peril. ETor was there any act or word from the prisoner which explained b}7 his character could aggravate his conduct into such a provocation as to mitigate the offense to a lesser degree.”

There is no doubt that in the case at the bar the prisoner was the assailant; there is no testimony of any act or word upon the part of the deceased, happening before the gun *759is brought to the prisoner’s face, which can be construed into a reasonable provocation for his bringing it there to do what the act indicates he intended, and which the result establishes it was his purpose to do. Admit that he was a dangerous, violent and quarrelsome man, and that the prisoner knew it, still the fact is, that there is no proof that his conduct bore any appearance of hostility, but clear proof that when killed he was going off from, and thus, to all appearances, decreasing the possibilities of doing present harm to the prisoner.

After the witnesses for the State and the defence had testified the prisoner made his statement, and immediately his counsel renewed the former offers to prove the threats and the character of the deceased. They were overruled, however, on the same grounds, and exceptions were taken. The action' of the court on these renewed offers are covered by what we have said, unless the statement made by the prisoner as to threats and character are to be considered as having a different effect. In Miller vs. State, 15 Fla., 583, it is held that the making of a statement, under oath, does not constitute the prisoner a witness, nor subject him to the rules applicable to witnesses, nor make him liable to cross examination; but that it is simply a presentation verbally, in his own language and manner, of the matters pertaining to his defence, of such facts and circumstances as will go to excuse the offence and negative the idea of willful and corrupt intent, and that it is for the jury alone, and is to be taken into consideration by them in connection with all of the evidence in the case and to be allowed such weight, and such only, as they, in their judgment, may see fit to give it. We have before approved of this view of the statute, and we do not think that it makes the statement of the prisoner as to an overt act such proof as requires the admission of. the testimony which was ex-*760eluded. Ho such character has ever been given to a statement by this court. He is given an opportunity of stating whatever he may desire bearing upon his case. He may omit what he pleases, may tell what he deems beneficial, and should he withhold anything it cannot be drawn from him by cross examination, no matter what its character or effect may be. He cannot be made to testify against himself as is allowed in some States where he has voluntarily offered himself as a witness. He has, in this instance, detailed in full what he considered the matters of his defence, and in doing so has laid before the jury the alleged threats. It is a fact that he does not pretend to have thought that Stephens had any intention of using his pistol, but he says that when Stephens and Ityass got up they started towards the house, and he felt fully sure they intended to get their guns. The testimony is that they had not brought any guns to the house,and the house is testified to have been sixty or seventy yards from where the shooting took place. Although he says he knew that his life was in danger, and that of his family, he does not say that he believed his life then in danger. The jury heard his statement and it was for them to give to it such weight and credence as they, inv the conscientious performance of their duty, believed it entitled to. The result of the trial was a verdict of murder in the first degree, accompanied by a recommendation to mercy—in effect, so far as the punishment of the prisoner is concerned, the same as a verdict of murder in the second degree.

We do not think the Oiicuit Judge erred, but are of the opinion that the judgment should be affirmed, and it will be adjudged accordingly.