66 Fla. 210 | Fla. | 1913
William J. Howell was indicted and tried for murder in the first degree and convicted of manslaughter, from which he seeks relief here by writ of error. In view of the conclusion which we have reached,
“5. In this case if the homicide was committed by the defendant and in the lawful defense of himself, and was free from fault at a time when there was reasonable ground for him as a reasonable, prudent and cautious man to appreehnd, and if-he did then and there apprehend a design on the part of the deceased to kill him, or do other harm or violence, and if under the circumstances, as you may find them from the evidence there, then and there appeared to the defendant eminent danger of such design' being accomplished by the deceased by actually shooting at the defendant with a pistol, or by the act of drawing such weapon when the defendant was not at the time the aggressor, then the homicide was justifiable under the law, and not unlawful, and you must find from the evidence in this case beyond a reasonable doubt that the homicide was unlawful before you can convict the defendant of any offence.”
In addition to being vague and confusing, this portion of the charge is misleading in that it places a burden upon the defendant which the law does not impose by instructing the jury that the evidence must show that at the time of the tragedy it “appeared to the defendant that there was eminent danger of the design” on the part of the deceased to kill the defendant or to do other harm or violence to him “being accomplished by the deceased by
Without undertaking any discussion of the point, which cannot be said to be properly presented before us, for the guidance of the trial court upon another trial, we would refer to McNish v. State, 45 Fla. 83, 34 South. Rep. 219, 110 Amer. St Rep. 65 and Daniels v. State, 57 Fla. 1, 48 South. Rep. 747, to the effect that testimony as to confessions of guilt made by an accused party to officers, especially when such party is under arrestáis not admissible in evidence at the trial, unless it is clearly shown that the confession was voluntarily made after such party is fully advised of his rights under the law. See also McNish v. State, 47 Fla. 69, 36 South. Rep. 176.