62 Fla. 54 | Fla. | 1911
— The plaintiff in error, as defendant below was indicted for, and tried and convicted of the crime of murder in the second degree in the Circuit Court of Gadsden County, and seeks reversal of the sentence and judgment pronounced upon him by writ of error. But one error is assigned and presented here, the denial of the defendant’s motion for new trial made upon the ground that the verdict rendered was contrary to the evidence and to the law. The evidence in full as presented to us in the record brought here is as follows:
Henry Turner, for the State, testified as follows: “I know High Barrow, but I do not know Charleston Francis. I saw some people pass my place on January 28th, 1911, and a few minutes afterwards I heard a shot fired. I ran out there and struck a light, in the dark, and found High Barrow lying down in the road face down. There was a mark where a bullet had come out of the back his head. I turned him over and saw where a bullet had entered his head, just above the nose. I then went about fifty yards, to another man’s house, and got him to come there. I did not see any knife, or other weapon. I held a lamp up and looked around. I stood in one place. Other people were there when I left and other people were there when I returned. I was related by marriage to High Barrow.”
Luke Long, for the State, testified as follows: “Will Long (my brother), Henry Carter, High Barrow and myself were coming from the festival on January 28th, 1911; we met Charleston Francis, Sam Tillman, Amos DeVaughn and Will Sanders on the road, who were going to the festival. We stopped and said 'hello,’ and talked about different things. They ask us how the festival was, and we told them it was quiet, but to go on and have a good time if they could. Charleston Francis spoke
Henry Carter, for the State, testified as follows: “I was with High Barrow and two other men on January 28th, 1911, coming from the festival, when we met Charleston Francis and four other men, going to the festival. This was in Gadsden County, Florida. We talked awhile about different things and told them to go on to the festival and have a good time. I heard Charleston Francis ask High Barrow to pay him back some money he owed him, and I heard High BarroAV tell Francis that
And thereupon the State announced that it rested its case, and the defendant caused to be produced and sAvorn, as a witness, one Amos DeYaughn, who testified as fol lows: “I was Avith Charleston Francis and the others the night that we met in the road in Gadsden County, Florida, on January 28th, 1911. I was going to the festival, Sam Tillman, Will Sanders and Charleston Francis were with me. High Barrow, Henry Carter, Will Long and Luke Long had been to.the festival. We met and- all
Will ganders, for the defendant, testified as follows: “I was with Charleston Francis, Amos DeVaughn, Sam Tillman going to the festival, when we met Will Long, Luke Long and High Barrow. We stopped to talk in the
. Sam Tillman, for the defendant, testified as follows; “I was present on January 28th, 1911, in Gadsden County, Florida, when High Barrow was shot by Charleston Francis. We were going to the festival and met High Barrow and some others coming from the festival. We
J. P. Smith, for the defendant, testified as follows: “I know Charleston Francis and I know his general reputation .in the community for being peaceable, orderly and law-abiding, and his reputation is good, and I do not testify this way because he dealt with me as a customer.”
The defendant testified as follows: “I am Charleston Francis. I was going to the festival in Gadsden County, Florida, on January 28th, 1911, with Sam Tillman, Will
And thereupon concluding with this witness, the defendant rested his case, whereupon the State re-called Luke Long in rebuttal, who testified as follows: “I do not
Albert Gregory, for the State, testified as follows: “I went to the place where High Barrow was killed and got there an hour or so after he was killed. I carefully searched his body and the ground near his body for a weapon, but found no knife or other weapon.”
Does this evidence make out a case of murder in the second degree? We cannot see that it does. If it does not make out a case of justifiable homicide in favor of the defendant, the most that can be made out of it against him is the crime of manslaughter, and so finding the court below erred in denying the motion for new trial.
The judgment of the Circuit Court in said cause is, therefore, hereby reversed, and a new trial ordered at the cost of Gadsden County.