71 Fla. 633 | Fla. | 1916
Claud Doke was convicted of manslaughter in the Circuit Court for Alachua County upon an indictment charging him with the murder of W. Lewis
Claud Doke was indebted to W. Lewis Abbott in the sum of ten dollars for the purchase of an old buggy and was unable to pay. Abbott was persistent in his efforts to collect the debt from Doke notwithstanding the latter’s repeated statements to Abbott that he was unable to pay.
About eight or ten months before Abbott was killed Doke suffered from an attack of typhoid fever which confined him to his bed for about two and a.half months, which left him in a very weak physical condition, and a very greatly swollen leg which made it necessary for him to -use crutches for a long while after he was able to leave his room.
On the day of the difficulty in which Abbott was killed Doke had abandoned his crutches, but his leg was still swollen and he was not in a normal state of health according to the physician who had attended him during his illness. According to the testimony of the defendant below and other witnesses, the attitude of Abbott toward Doke was hostile, overbearing and insulting to the extent perhaps of intimidating the latter who on more than one occasion avoided him.
Abbott had threatened Doke with violence if the latter failed to pay the debt within a certain time, and on the morning of the day in which the former was killed he said to O. F. Moore, a deputy sheriff, that he was going out to Doke’s place and if Doke did not pay the debt Abbott would have the ten dollars or “that much hide,” and to another witness, Henry Money, a barber, he said that Doke owed him ten dollars and “I am going to have it or kill him.”
Upon the day of the fatal encounter between these two men, Abbott and Doke, the latter was moving his
The plaintiff in error insists that the circumstances under which Claud Doke killed the deceased, clearly showed that Doke was justifiable, upon the theory of self defense, in taking the life of the deceased.
That the defendant was where he had a right to be there can be no question; but whether it be considered that he was within his own enclosure or not the taking of the life of the deceased was not justified unless the defendant used all reasonable means in his power and consistent with his own safety to avoid the danger and avert the necessity of killing the deceased. See Owens v. State, 64 Fla. 383, 60 South. Rep. 340; Stafford v. State, 50 Fla. 134, 39 South. Rep. 106; Danford v. State, 53 Fla. 4, 43 South. Rep. 593; King v. State, 54 Fla. 47, 44 South. Rep. 941; Peadon v. State, 46 Fla. 124, 35 South. Rep. 204.
In the Danford case, supra, the court said the principle, that it is the duty of one to avoid a difficulty he has reason to believe is imminent, if he may do so without apparently exposing himself to death or great bodily harm, cannot be denied, and that whatever qualification it may have will depend upon the circumstances of each particular case. That a man violently assaulted in his own house or on his own premises near his house is not obliged to retreat, but may stand his ground and use such force as may appear to him as a cautious and prudent man to be necessary to save his life or to save himself from great bodily harm. In cases where a combat is mutually sought, the duty of retreating seems to apply to both parties, for both being in the wrong, neither can right himself without retreating. And in the case of Ballard v. State, 31 Fla. 266, 12 South. Rep. 865, the
We think that the question of the defendant’s freedom from fault and the reasonableness of his belief under the circumstances that he was in danger of death, or great bodily harm from the deceased, was peculiarly for the jury to determine. The accused may have had and entertained some resentment against the deceased for the latter’s persistent insulting and annoying efforts to collect the debt which the defendant owed him; carrying the gun backward and forward from his own home to the new one to which he was moving may have been a precautionary measure against his meeting with the deceased and to have in his possession the means wherewith to hurt somebody if the deceased “bothered” him. The possession of the gun with the ammunition ready at hand may have emboldened him to use the violent language toward the deceased which he used; he certainly did not decline a fight except by loading his gun after the deceased spoke to him, and after replying in language which indicated no fear of the deceased under the circumstances, and which was calculated to precipitate a difficulty which he must have believed was imminent, turned and ran a short distance. It is true he fled apparently from the deceased, but he turned and fired at close range upon the deceased who was probably unarmed and approaching upon the defendant’s invitation, which at least was implied. Under these circumstances we cannot say that the accused was free from fault in bringing on the difficulty,