62 Fla. 29 | Fla. | 1911
— Harry Danson was indicted for murder in the first degree, tried and convicted of murder in the second degree, and seeks relief here by writ of error.
The first three assignments, which are argued together; are severally based upon the introduction in evidence, over the objection of the defendant, of Section 65 of the “Acts of Incorporation of the City of Jacksonville,” as it is designated in the transcript, and of Sections 351 and 354 of the ordinances of such city. These sections relate to the duties and powers of the police force, designate certain crimes and provide for the punishment of those convicted thereof. We find that the sole grounds of objection'urged against the introduction of these respective sections were that “the same was irrelevant and not-pertinent to the issues in the
At'this stage of the trial the documentary evidence was offered and admitted in evidence, over the objection of the
Section 351, the second of such instruments, provides for the punishment of “Any person convicted of endangering or disturbing the public peace, or violating public decency by using any abusive, obscene or profane language, or by making any threats, of violence, to or against any other person or persons, or by using profane, obscene or indecent language or by being drunk or by being noisy or disorderly, in or upon any'street, square, or other public place, within the City Limits,” and then proceeds to designate certain other offense. Section 354, the third of such instruments, makes it unlawful for any person owning or conducting a saloon within the limits of the City of Jacksonville “to keep the same open or any door or aperture thereof which could or might be used as a means of ingress or egress to such premises- on the Sabbath day,” requires that all saloons “shall be closed from 12 o’clock at night until 5 o’clock in the morning,” and provides that “Any person or persons violating any of the provisions of this section be, and the same are hereby declared to be disorderly persons, dangerous to the peace and morals of the city, and he, she or they shall on conviction before the Municipal Court, be punished as provided in Section 348.”
In view of the evidence which had already been adduced, the salient features of which we have given above,
Before taking up any of the other assignments for treatment, we think it advisable to state that, after introducing the documentary evidence in question, the State proceeded to prove by four different witnesses certain conversations had with the defendant, after he was arrested, the substance of which was that he admitted he had shot Ammons because Ammons and his father (Dan Danson) “were having trouble, and it looked like he (Ammons) was going to club his father.” The defendant then went on to say: “After I shot Ammons I turned to wars bacs to the corner; I seen this other policeman, I didn’t know his name, but I seen this other policeman, and I shot him because I was afraid he might hurt me.” Tt is not con
In a long line of decisions this court has held that “upon a writ of error, the respective parties litigant are presumed to have had their day in court and to have had the points at issue between them fairly and impartially tried and determined in accordance with the law of the land. The final judgment is presumed to be correct, and this presumption must be met in the appellate court and overcome by the plaintiff in error.” See the discussion therein and prior decisions cited in McKinnon v. Lewis, 60 Fla. 125, 53 South. Rep. 940, and Baker & Holmes Co. v. Indian River State Bank, 61 Fla. 106, 55 South. Rep. 836. As was also said in McKay v. Lane, 5 Fla. 268, text 276: “This court has uniformly proceeded upon the practice not to reverse a judgment, however erroneously an isolated point may have been ruled by the judge below, when it is clearly apparent that the party complaining had been in no way injured by the improper ruling.” To the like effect is our holding in Southern Home Insurance Co. v. Putnal, 57 Fla. 199, 49 South. Rep. 922, and Pensacola Electric Co. v. Bissett, 59 Fla. 360, 52 South. Rep. 367, wherein still other decisions of this court will
These principles will prove of material assistance to us, we think, in disposing of such of the other assignments that, in our opinon, merit treatment.
The fourth assignment is based upon the following-portion of the charge given by the court: “Gentlemen of the jury, the police force of the City of Jacksonville have the power and authority under the laws of the State of Florida, to immediately arrest without warrant, and take into custody any person who shall commit or threaten or attempt to commit in the presence of the arresting officer, or within his view, any breach of the peace or offense directly prohibited by the act of the legislature or by the ordinance of the City Council of said city.”
This assignment is discussed by the plaintiff in error together with the first three assignments, which we have already disposed of, but we perfer to treat it separately. It is contended that there was no evidence adduced of an arrest, therefore such charge was uncalled for, unwarranted and violative of the established principle that charges and instructions should be confined to the evidence in the case. In reply to this contention, it may be admitted that the evidence may not show, technically
The ninth assignment is as follows: “The court erred in refusing to charge the jury, upon the request made by the jury through Deputy Sheriff Williamson, on the law as to what constitutes a legal arrest.” We find that the showing made in the bill of exceptions upon this point is as follows: “And afterwards the said jury did send down to the said Judge, by and through one Ed. Williams, a Deputy Sheriff, who was then in charge of and having custody of said jury during their deliberation, and who was duly appointed Deputy to E. F. Bowden, Sheriff of Duval County, Florida, a request to the said Judge that he, the said Judge, instruct the jury and charge them on the law as to what constituted a legal arrest. But the said Judge upon receiving said request made as aforesaid by the said jury during their deliberations, did decide and refuse because there was no evidence before them that
It is urged strenuously that the court was inconsistent and misleading, in charging upon the power of the police to make arrests and in stating that there was no arrest, but we find no such inconsistency. The duties of the police were described to the jury, that it might be made plain why Hires appeared as he did upon the scene. Danson was not on trial for shooting Ammons, who may or may not have been within his official rights in the seizure of the elder Danson — an issue not now material — but the law so laid down clearly and correctly charged that Hires was in his line of duty, and there was no question before the jury as to an actual arrest, lawful or unlawful.
We shall not undertake to discuss the other assignments, though we have given them all our careful examination. See Hinson v. State decided here at this term, and prior decisions of this court therein cited, especially Gee v. State, 61 Fla. 22, 54 South. Rep. 458.
We are clear that no reversible error has been made to appear to us, therefore the judgment must be affirmed.