| Fla. | Jun 15, 1897
At the last term of the. Circuit Court of Calhoun county, the plaintiff in error was tried for the murder of one Tom Smith, alleged to have been committed in that county on April 5, 1896. He was found guilty of murder in the first degree, and sentenced to death, and we are now asked to reverse this judgment, because it is insisted the Circuit Court should have granted a new trial upon the ground that the evidence was insufficient to sustain the verdict.
Only three witnesses were examined upon the trial. J. L. Moody, for the State, testified that on April 5, 1896, he was sitting on his front porch in Calhoun county, making settlements with his workmen, and observed the deceased and one Tom House, in a heated quarrel about a quarter-dollar. He could not hear all that was said, but did hear House say he would
J. D. Moody testified substantially the same as the previous witness, and, in addition, that when House and deceased were quarreling, defendant came out of a tent about fifty yards distant, with a musket in his hands; that he walked around the tent and came up in the rear of deceased, stopping about fifteen steps
Defendant testified that the difficulty between House and deceased occurred over a quarter which deceased claimed witness owed him. Defendant told deceased he had no money of his own, but had some belonging to his brother-in-law (House). House told deceased he would put a quarter on a stump for him if deceased would pick it up; and as deceased stooped-to pick it up, House shot over his head, and deceased, then shot House in the breast and killed him, remarking that he had “killed one s— óf a b-h, and Gf-d d — n them, I will kill the other one.” Deceased then attempted to whirl around and shoot defendant, who-was standing with gun in hand, and as soon as defendant saw deceased begin to turn witn a loaded pistol in hand, saying “I have killed one s — af a b--h, and will kill the other one,” he knowing that deceased' would kill him next, shot deceased in the side. Defendant ran because he was afraid of the crowd coming on him. Defendant lived half a mile from the place of the shooting. Defendant shot deceased to save his own life, knowing deceased would kill him if he did not shoot.
We have no original jurisdiction to set aside verdicts and grant new trials because of insufficient evidence to sustain such verdicts.. We act only upon a ruling of the lower court refusing a new trial upon that ground, where such ruling is erroneous, and in determining this question we look to the evidence upon which the verdict of the jury, and the ruling of the-court below, are predicated. If there is evidence;