54 Fla. 25 | Fla. | 1907
— Henry Warren Day, for convenience hereinafter called the defendant, at the Fall term of the circuit court of Hillsborough county was indicted for the murder of Albert B. Wren in said county, on the 8th of November, 1906, by stabbing, etc., him with a knife. The indictment charged murder in the first degree. He was tried in January, 1906, found guilty of murder in the second degree, and .sentenced to the state prison for life. He has brought the sentence and judgment here for review on writ of error.
We think the following is a substantial summary of the evidence of the state: Mr. Day had a contract to carry the mails between the railroad depots and boats, and the postoffice. Mr. Wren was an employee of the
The assignments of error, which we will consider in the order in which they are argued, are:
ist. The court erred in .overruling the motion for a new trial, which challenged the verdict as contrary to the evidence and weight of the evidence, and contrary to law. In reference to this assignment it is sufficient to say that we can discover nothing in the evidence, or lack of it, which would justify us in reversing the judgment. It shows some degree of premeditation on Mr. Day’s part, in that he had a previous quarrel with Wren and amidst the exchange of epithets between Wren and himself he drew his knife from his pocket, opened it behind his back, keeping it open in his right hand and apparently concealed from Wren, placed his left hand on Wren’s breast or arm, and said, “Hit me, hit me,” as if challenging Wren to some overt act, which he, Day, might use as an excuse for the use of his knife upon Wren, who was unarmed. Moreover he ferociously followed up his first cut or stab with ten others, one in Wren’s back, when it does not affirmatively appear that he was in the least danger of death or great bodily harm.
The fourth assignment of error, which is the next one argued, is in these words: “The court erred in re
The fifth assignment of error is based on the refusal of the court to give instruction numbered 4, requested' by defendant. While the assignment is insisted on, it is not argued further than the assertion that it is sound law, which was not so thoroughly presented in either the court’s charges or the other instructions requested by the defendant. The instruction is argumentative and we think was substantially given by other instructions of the court.
The sixth assignment of error is not argued.
The seventh assignment is based on -the refusal of
The eighth assignment is based on the refusal of the court to give the following instruction: “If the jury believe from the evidence that at the time the defendant is alleged to have stabbed the deceased, the circumstances surrounding the defendant were such as in sound reason would justify or induce in his mind, after reasonable, prudence and caution, an honest belief that he was in danger of receiving from the deceased some great bodily harm, and that the defendant in doing what he did was acting honestly from the instinct of self-preservation, then he is not guilty, although there may in fact have been no real danger.” In this connection the trial judge gave the following charge: “Homicide is justifiable when committed by any person in the lawful defense of such person when there shall be a reasonable ground to apprehend a design to commit a felony, or to do some great personal injury, and there shall be imminent danger of such design having been accomplished; but unless such belief of danger is reasonable, — that is, unless a reasonably prudent and cautious man would entertain the same belief from the same appearances, — it will be no defense, even though it was an honest belief of danger. Men do not hold their lives at the mercy of the unreasoning fears or excessive caution of others; and if, from such motives the defendant killed the deceased, without real or apparent good reason for so doing, he cannot justify his act as being in self defense.” This charge very succinctly states the law of self defense as recognized in this state, although it is given in r more
The ninth assignment of error is based on the following portion of the general charge to the jury given by the trial judge: “The presence of the defendant’s family in court has nothing to do with the .facts of this case, and in making up your verdict you should not permit their presence to have any influence whatever upon you.” No authority is cited in support of this assignment. The giving of cautionary instructions is necessarily a matter very much within the discretion of the trial court. An instruction that the jury in arriving at their verdict should not be influenced by any feeling of sentiment, but that they should apply the law, as given them by the court, to the facts of the case is proper, (Hughes on Instructions to Juries, § 49) and the charge objected to is in line with this doctrine. Lindsey v. State, 53 Fla. 56, 43 South. Rep. 87; Adams v. State, 28 Fla. 511, text 554, 10 South. Rep. 106.
■ The tenth assignment is based on a portion of the general charge dealing with the question of premeditation. As the defendant was not convicted of murder in the first degree, and as tlie evidence, in our opinion, was such as would sustain the jury in a finding of murder in the second degree, it is not necessary to review the matter presented by this assignment. Richard v.
What is said above in regard to the tenth applies to the eleventh assignment. It objects to a portion of the general charge relating to premeditated design, and with what constitutes murder in the first degree.
We discover 110 reversible error in the record, and the judgment of the court below is affirmed at the cost of the county of Hillsborough.
Taylor and Parkhill, JJ., concur;
Shackleford, C. J., and Cockrell and Whitfield, JJ., concur in the opinion.