52 Fla. 30 | Fla. | 1906
The plaintiff brings writ of error to a judgment of the Circuit Court for Duval county convicting him and sentencing him to the State Penitentiary for life for the murder of Ely Simmons on August 11th, 1905.
A motion for a new trial having been overruled and an exception taken such ruling is assigned as error.
An exception was taken and error is assigned on the refusal of the court to give the following charge requested by the defendant: “That if you believe from the evidence that Sam Simmons and his son Eli went into the woods for the purpose of taking the life of the defendant, upon the day of the killing, and following up this common purpose, and at the time of the killing, that either Sam Simmons or his son Eli shot at the defendant, attempting' to kill him, then the shooting by one was the action of the other; the rule of law in such case is: ‘Everyone who does enter into a common purpose or design is equally deemed in law a party to every act which may afterwards be done by any of the others in furtherance of such common design.’ In such case the defendant would be justified in
The following charge requested by defendant was refused, an exception was taken and error is assigned thereon : “That if you find from the evidence that the deceased was at or near the place of the killing, concealed there, early in the morning of the killing, and this fact was communicated to the accused, then he had a right to arm himself and believing that the deceased had left the place where he had been between the defendant and his oxen, then the action of the defendant in hunting his oxen was the act of a prudent man, doing those things he had a right to do, and if assaulted was justified in taking the life of the deceased and you should find him not guilty and acquit him.”
This charge is erroneous in that it assumes facts as to the belief of the defendant not conceded in the evidence, and states as law matters of fact which the jury should determine. In addition to this the phrase “and if assaulted was justified in taking the life of the deceased” is clearly erroneous since the facts previously stated in the charge if true would not justify the defendant in taking the life of
The court refused to give the following charge requested by the defendant: “That a surgeon or physician, testifying to fact, which a non-professional or non-expert witness may testify to, such as the wound, as to its location upon the body of the deceased, or the number of wounds upon a person and whether they were located in the front part of the deceased or back part, is non-expert testimony, and one witness who knows the facts of the existence of such wounds, and their location upon the body of the deceased, is as competent to testify as another to testify to such facts, if he can relate the circumstances which he is testifying about intelligently, and being professional witness or expert upon such facts does not entitle such witness to more credit than to any other witness as to such facts testified about.”
An exception having been taken the refusal of the court to give this charge is assigned as error. As this charge is framed it calls particular attention to a portion of the testimony of some of the witnesses; and besides, the latter part of the charge as expressed has a tendency to invade the province of the jury as to the relative credibility of certain witnesses. The court can not be held in error for refusing it.
The following portion of the charge given by the court was excepted to and is assigned as error: “Now, one can not by his own act provoke a difficulty with his adversary and having provoked such difficulty, act under the necessity produced by this difficulty and kill his adversary and justify such homicide under a plea of self-defense. In other words, if one with hatred or malice in his heart against a particular person provokes a difficulty with that person,
This portion of the charge of the court is abstract and may not be objectionable under a state of facts justifying it. See Sylvester vs. State, 46 Fla. 166, 35 South. Rep. 142. While it is. not exactly applicable to the facts of this case, in view of other charges given applicable to the case and entirely fair to the defendant, it seems clear that the defendant could not have been injured by the charge.
A motion to strike the testimony of witnesses as to a lantern found in the vicinity of the homicide was overruled, the court stating that its materiality did not appear, but that it could not do the defendant any possible damage to leave it in, and if the materiality is not shown it would be stricken. On another trial such testimony unless shown to be material, should be omitted.
A witness testified that a map offered in evidence was made by him' from a survey to locate points indicated to him and that it accurately shows the location of several stumps and other objects pointed out to him and the locations of the road at the place of the homicide. The defendant objected to the introduction of the map in evidence on the ground that it is secondary, i. e., based on information received from others. The witness testified that he made the map from a survey made by him of objects
The State offered in evidence certain targets into which a witness testified he had fired shots from a gun. The defendant objected on the ground that no one had testified about any target shooting and that it was not proper evidence on rebuttal. These objections were overruled, and the defendant excepted. Error is here assigned. The evident purpose of introducing the targets was to discredit the defendant’s testimony as to the conditions under which he shot the deceased. In his testimony the defendant admitted the shooting of the deceased, but claimed it was done in self-defense. He testified that deceased fired on him and that he shot the deceased at first with buckshot and he staggered-back and fell, and as he was getting up with his pistol in his hand he shot him again with mixed shot, buckshot and small shot. There was testimony that shot of different sizes penetrated the deceased in different parts of his person, • and the State sought to show the deceased could not have been shot as testified by the defendant, because of the location of the shot wounds. The targets were apparently designed to show that shot from a gun would not scatter over so much
In this case it does not appear that the same or a similar gun was used, or that the shot, powder and loading were similar, or that the target was so placed as to be similar in position to the body of the deceased when he was shot as testified by the defendant. These and other conditions and circumstances not being shown to be similar, the targets were liable to confuse the jury and should not have been admitted under the facts shown by this record. Such evidence could materially affect the defendant and it can not be said he was not harmed by its admission.
There are other general objections to evidence not specifically assigned which we will not discuss here, no reversible error appearing as to such objections from a careful reading of the transcript.
For the error in admitting in evidence the targets the judgment is reversed and a new trial granted.
